Pita vs CA

9/10/2011 7:15:00 AM

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 80806 October 5, 1989 LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner, vs. THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents. William C. Arceno for petitioner. Casibang, Perello and De Dios for private respondent. SARMIENTO, J.: The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of property without due process of law. There is no controversy as to the facts. We quote: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per seobscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should not be granted. On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December 14, 1983. In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that the said materials were voluntarily surrendered by the vendors to the police authorities, and that the said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ of preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer. On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents can without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on whether said magazine is obscene or not". The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an urgent motion for issuance of another restraining order, which was opposed by defendant on the ground that issuance of a second restraining order would violate the Resolution of the Supreme Court dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only for twenty days from date of its issuance. On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the issuance of a writ of preliminary injunction. On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not". On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file a rejoinder within the same period from receipt, after which the issue of Preliminary Injunction shall be resolved". Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "ReplyMemorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary injunction, and dismissing the case for lack of merit. 2 The Appellate Court dismissed the appeal upon the grounds, among other things, as follows: We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or materials deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the press is not without restraint as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3 The petitioner now ascribes to the respondent court the following errors: 1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police officers could without any court warrant or order seize and confiscate petitioner's magazines on the basis simply of their determination that they are obscene. 2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was merely the application of petitioner for the writ of preliminary injunction. 4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down the test, in determining the existence of obscenity, as follows: "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." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate sense of the community reached by it." 9 Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is obscene, and vice-versa. Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical "community standard" whatever that is and that the question must supposedly be judged from case to case. About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised Penal Code. Go Pin, was also even hazier: ...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so

that the cause of art was 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. 11 xxx xxx xxx As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not entitled to any constitutional protection. It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the "redeeming" element that should accompany the work, to save it from a valid prosecution. We quote: ...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. ... 14 Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it, would it cease to be a case of obscenity? Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is art. In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United States, adopted the test: "Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottingerin the sense that it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that "contemporary community standards" are the final arbiters of what is "obscene"). KalawKatigbak undertook moreover to make the determination of obscenity essentially a judicial question and as a consequence, to temper the wide discretionKottinger had given unto law enforcers. It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19 Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming social value," 21 marked yet another development.

The latest word, however, is Miller v. California, 22 which expressly abandoned Massachusettes, and established "basic guidelines," 23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 24 (A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v. 26 Georgia, yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary American sexuality.) The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctance of the courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject as in all speech to regulation in the interests of [society as a whole] but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed." 28 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. What shocked our forebears, say, five decades ago, is not necessarily repulsive

to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today. 29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's most prestigious museums. But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. 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. We share Tribe's disappointment over the discouraging trend in American decisional law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight. In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the petition. However, this much we have to say. 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. 30 But, so we asserted in Reyes v. Bagatsing, 31 "the burden to show the existence of grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]." 32 "There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger." 33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require." 34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test." 35 The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue. It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure. As we 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 Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals." 36 Neither do we. But it brings us back to square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question, again, is: Has the petitioner been found guilty under the statute?

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, 38 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 ." 39 Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. We quote: Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the following rules: (a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed. (b) Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary. (c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for review. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.) Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I hereof, the penalty as provided herein shall be imposed in the maximum period and, in addition, the accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed . 40 Under the Constitution, on the other hand: SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a political case, because, and as we have indicated, speech is speech, whether political or "obscene". The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide: SEC. 12. Search without warrant of personarrested. A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. 44 but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. Here, no party has been charged, nor are

such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code. We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner. We make this resume. 1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; 2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference and action; 3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-to-case basis and on His Honor's sound discretion. 4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; 5. The proper suit is then brought in the court under Article 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". These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code" 47 or the Revised Penal code . 48 WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search and seizure

ave been destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and academic. SO ORDERED.

Gonzales v Kalaw Katigbak

9/10/2011 7:15:00 AM

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69500 July 22, 1985 JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners, vs. CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents. Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners. The Solicitor General for respondents. FERNANDO, C.J.: In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the constitutional right to freedom of expression 1 of an artist and for that matter a man of letters tooas the basis for a ruling on the scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised. The dispute between the parties has been narrowed down. 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. 2 The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig.

Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition. This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are the deletions ordered in the film. 7 The prayer was for the dismissal of the petition. An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For petitioners, such classification "is without legal and factual basis and is exercised as 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. 8 There was an answer to the amended petition filed on February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered by the Board as well as the statutory provisions for review of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the sufficiency of the standards remains the only question at issue. It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the classification of "For Adults Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary expression embraced in the free speech and free press guarantees of the Constitution. 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. Nor as pointed out in Burstyn v. Wilson 9 is 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. 10 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. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom, as stated in the opinion of the Court, "may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 12 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, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case ofUnited States v. Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting as it does to 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. 16 3. The test, to repeat, to determine whether freedom of excession 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. There is the require of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor. 18 4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United States 19 speaking of the free speech and press guarantee of the United States Constitution: "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. 20 Such a view commends itself for approval. 5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: "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. 21 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 inUnited 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. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine. 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 asparens patriae is called upon to manifest an attitude of caring for the welfare of the young. WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as "For-Adults-Only."

People of the Philippines vs Padan y Alova9/10/2011 7:15:00 AM

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7295 June 28, 1957 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES and JOSE FAJARDO, defendants. MARINA PADAN Y ALOVA and JOSE FAJARDO, defendantsappellants. Augusto Revilla for appellant Jose Fajardo. W. M. Bayhon for appellant Marina Padan y Alova. Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee. MONTEMAYOR, J.: In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto Reyes were charged with a violation of Article 201 of the Revised Penal Code, said to have been committed as follows: That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside a building at the corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose Fajador y Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor, willfully ,unlawfully and feloniously hired their co-accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to perform and in fact performed sexual intercourse in the presence of many spectators, thereby exhibiting or performing highly immoral and indecent acts or shows thereat. Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of her counsel de parte and counsel de

oficio, asked for permission to withdraw her former plea of not guilty, which was granted, and upon rearraignment, she pleaded guilty to the charge. In a decision dated October 12, 1953, Marina Padan was found guilty as charged and sentenced to six months and one day of prision correccional and a fine of P200, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, with the accessory penalties prescribed by the law, and to pay the proportionate costs. After trial of the three remaining accused, they were all found guilty; Cosme Espinosa and Ernesto Reyes were sentenced each to not less than six months and one day of prision correccional and not more than one year, one month and eleven days of prision correccional, to pay a fine of P500, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, and to pay the proportionate costs. Jose Fajardo was sentenced to not less than one year, one month and ten days of prision correccional and not more than one year eight months and twenty days, also of prision correccional, to pay a fine of P1,000, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty and to pay the proportionate costs. The army steel bed, the army woolen blanket, the pillow, the ladies' panties, and the men's underwear, described in Exhibit C, were declared confiscated. The four accused appealed in the decision, the appeal having been sent to us. Appellants Espinosa and Reyes failed to file their briefs within the period prescribed by law and their appeal was dismissed by resolution of this Court of November 25, 1955, and the decision as to them became final and executory on January 7, 1956, as appears from the entry of judgment. Because of her plea of guilty in the lower court, appellant Marina in her appeal do not question her conviction; she merely urges the reduction of the penalty by eliminating the prison sentence. We do not feel warranted in interfering with the exercise of discretion in this matter, made by the lower court presided by Judge Magno S. Gatmaitan. According to his decision of October 12, 1953, in imposing the sentence, he already considered

Marina's plea of leniency, and so despite the recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence of six months and one day, his honor reduced the fine to only P200. We believe that the penalty imposed fits the crime, considering its seriousness. As far as we know, this is the first time that the courts in this jurisdiction, at least this Tribunal, have been called upon to take cognizance of an offense against morals and decency of this kind. We have had occasion to consider offenses like the exhibition of still 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. Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission of the offense charged, he in its that he was not the manager or the person incharge of the show or proceedings on the night of September 13, 1953; that his participation, if he participate at all, was to play the role of an innocent bystander, but that because of his popularity in the neighborhood, being popularly known as a "siga-siga" character, he was requested by the spectators to select the man and the woman to engage or indulge in the actual act of coitus before the spectators; that after making the selection, he did not even care to witness the act but left the scene and returned to it only when

he heard a commotion produced by the raid conducted by the police. The evidence on his active participation and that he was the manager and one in charge of the show is however ample, even conclusive. We have carefully examined such evidence, and we are satisfied that they fully support the findings of the trial court. Such facts may be briefly stated as follows: At the corner of Morga Extension and Camba Extension, Tondo, Manila, was a one story building which judging from the picture exhibited is nothing but a shed, with a floor space of eight by fifteen meters which was mainly used for playing ping-pong. A ping-pong table must have been placed in the center and on two sides were built benches in tiers, so that the spectators seated on them could look down and see the game. On September 13, 1953, however, the building was used for a different purpose. It was to be the scene of what was said to be an exhibition of human "fighting fish", the actual act of coitus or copulation. It must have been advertised by word of mouth; tickets therefor were sold at P3 each, and the show was supposed to begin at 8:00 o'clock in the evening. About that time of the night, there was already a crowd around the building, but the people were not admitted into it until about an hour later, and the show did not begin until about 9:15. The Manila Police Department must have gotten wind of the affair; it bought tickets and provided several of its members who later attended the show, but in plain clothes, and after the show conducted a raid and made arrests. At the trial, said policemen testified as to what actually took place inside the building. About two civilians who attended the affair gave testimony as to what they saw. The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto Reyes. He also collected tickets. In all, there were about ninety paying customers, while about sixteen were allowed to enter free, presumably friends of the management. Jose Fajardo y Garcia was clearly the manager of the show. He was at the door to see to it that the customers either were provided with tickets or paid P3.00 entrance fee. He

even asked them from whom they had bought the tickets. He ordered that an army steel bed be placed at the center of the floor, covered with an army blanket and provided with a pillow. Once the spectators, about 106 in number, were crowded inside that small building, the show started. Fajardo evidently to arouse more interest among the customers, asked them to select among two girls presented who was to be one of the principal actors. By pointing to or holding his hand over the head of each of the two women one after the other, and judging by the shouts of approval emitted by the spectators, he decided that defendant Marina Padan was the subject of popular approval, and he selected her. After her selection, the other woman named Concha, left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's partner. Thereafter, Cosme and Marina proceeded to disrobe while standing around the bed. When completely naked, they turned around to exhibit their bodies to the spectators. Then they indulged in 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. Then the police who were among the spectators and who were previously provided with a search warrant made the raid, arrested the four defendants herein, and took pictures of Marina and Cosme still naked and of the army bed, which pictures were presented as exhibits during the trial. From all this, there can be no doubt that Jose Fajardo y Garcia contrary to what he claims, was the person in charge of the show. Besides, as found by the trial court and as shown by some of the tickets collected from the spectators, submitted as exhibits, said tickets while bearing on one side printed matter regarding an excursion to Balara to be held on August 30, 1953 from 7:00 a.m. to 5:00 p.m., sponsored by a certain club, on the other side appears the following typewritten form, reading:

P3.00 Admit one PLEASURE SHOW Place: P. Morga Ext. and Camba Ext. Time : 8:00 o'clock sharp, and superimposed on the same is the rubber stamped name "Pepe Fajardo," which defendant Fajardo admits to be his name. Considering all the above circumstances, we agree with the trial court that Jose Fajardo is the most guilty of the four, for he was the one who conducted the show and presumably derived the most profit or gain from the same. As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the Solicitor General that the same is correct, except the minimum thereof which is beyond the legal range, and which should be reduced from one year, one month, and ten days of prision correccional to only six months of arresto mayor. With the modification above-mentioned, the decision appealed from by Marina Padan and Jose Fajardo are hereby affirmed, with costs against both.