Pita vs. CA G.R. No.

80806, October 5, 1989 Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Mani a, !amon D" #agatsing, e ements of the Specia Anti-$arcotics %roup, Au&i iary Ser'ices #ureau, (estern )o ice District, *$) of the Metropo itan )o ice +orce of Mani a, sei,ed and confiscated from dea ers, distributors, ne-sstand o-ners and pedd ers a ong Mani a side-a .s, maga,ines, and other reading materia s be ie'ed to be obscene, pornographic and indecent and ater burned the sei,ed materia s in pub ic at the /ni'ersity be t in the presence of Mayor #agatsing and se'era officers and members of 'arious student organi,ations" Among the pub ications sei,ed and ater burned, -as 0)inoy ) ayboy0 maga,ines pub ished and co-edited by p aintiff 1eo )ita" 2e tfi eden an in3unction case against the mayor of mani a to en3oin him from confiscating more copies of his maga,ine and c aimed that this -as a 'io ation of freedom of speech" 4he court ordered him to sho- cause" 2e then fi ed an /rgent Motion for issuance of a temporary restraining order against indiscriminate sei,ure" Defendant Mayor #agatsing admitted the confiscation and burning of obscence reading materia s but admitted that these -ere surrendered by the sta o-ners and the estab ishments -ere not raided" On 5anuary 11, 1986, the tria court issued an Order setting the case for hearing on 5anuary 17, 1986 0for the parties to adduce e'idence on the 8uestion of -hether the pub ication 9)inoy ) ayboy Maga,ine a eged :sic; sei,ed, confiscated and<or burned by the defendants, are obscence per se or not0" On +ebruary 3, 1986, the tria court promu gated the Order appea ed from denying the motion for a -rit of pre iminary in3unction, and dismissing the case for ac. of merit" 4he CA a so dismissed the appea " 4hus, this petition" )etitioner contends that the CA erred in ho ding that the po ice officers cou d -ithout any court -arrant or order sei,e and confiscate petitioner9s maga,ines on the basis simp y of their determination that they are obscene" Issue= -hether or not the sei,ure of the 8uestioned materia s are constitutiona He != $o" 4he Court is not con'inced that the pri'ate respondents ha'e sho-n the re8uired proof to 3ustify a ban and to -arrant confiscation of the iterature for -hich mandatory in3unction had been sought be o-" +irst of a , they -ere not possessed of a a-fu court order= :1; finding the said materia s to be pornography, and :>; authori,ing them to carry out a search and sei,ure, by -ay of a search -arrant" According to the court, the test for obscenity is -hether the tendency of the matter charged as obscene, is to depra'e or corrupt those -hose minds are open to such immora inf uences and into -hose hands a pub ication or other artic e charged as being obscene may fa " 2o-e'er, the issue of -hen a pub ication has a corrupting tendency, or -hen can it be said to be offensi'e to human sensibi ities has not yet been reso 'ed" ?a a--?atigba. represented a mar.ed departure from ?ottinger in the sense that it measured obscenity in terms of the 0dominant theme0 of the -or., rather than iso ated passages, -hich -ere centra to ?ottinger" 2e undertoo. to ma.e the determination of obscenity essentia y a 3udicia 8uestion and as a conse8uence, to temper the -ide discretion ?ottinger had gi'en unto a- enforcers" 4he basic guide ines estab ished according to Mi er 's" Ca ifornia, are= 0:a; -hether 9the a'erage person, app ying contemporary standards9 -ou d find the -or., ta.en as a -ho e, appea s to the prurient interest " " "@ :b; -hether the -or. depicts or describes, in a patent y offensi'e -ay, se&ua conduct specifica y defined by the app icab e state a-@ and :c; -hether the -or., ta.en as a -ho e, ac.s serious iterary, artistic, po itica , or scientific 'a ue"

Apparent y, the courts ha'e assumed that 0obscenity0 is not inc uded in the guaranty of free speech, an assumption that has a o-ed a c imate of opinions among magistrates predicated upon arbitrary, if 'ague theories of -hat is acceptab e to society" *n this case, there is no cha enge on the right of the State, in the egitimate e&ercise of po ice po-er, to suppress smut pro'ided it is smut" +or ob'ious reasons, smut is not smut simp y because one insists it is smut" So is it e8ua y e'ident that indi'idua tastes de'e op, adapt to -ide-ranging inf uences, and .eep in step -ith the rapid ad'ance of ci'i i,ation" #ut neither shou d -e say that 0obscenity0 is a bare matter of opinion" /ndoubted y, 0immora 0 ore or iterature comes -ithin the ambit of free e&pression, a though not its protection" *n free e&pression cases, this Court has consistent y been on the side of the e&ercise of the right, barring a 0c ear and present danger0 that -ou d -arrant State interference and action" #ut the burden to sho- this ies -ith the authorities" 4here must be ob3ecti'e and con'incing, not sub3ecti'e or con3ectura , proof of the e&istence of such c ear and present danger"