GONZALEZ VS KALAW KATIGBAK

FACTS: Petitioner was the producer of the movie Kapit

sa Patalim which the Board of Review for Motion
Pictures and Televisions allowed on condition that
certain deletions were made and that it was shown on
adults only. The petitioner brought an action, claiming
violation of their freedom of expression.
HELD: Motion pictures are important both as a method
for the communication of ideas and the expression of the
artistic impulse. The power of the Board is limited to the
classification of films. For freedom of expression is the
rule and restrictions the exception. The power to impose
prior restraint is not to be presumed, rather the
presumption is against its validity. Censorship is
allowable only under the clearest proof of a clear and
present danger of a substantive evil to public safety,
public morals, public health or any other legitimate
public interest. The Board committed an abuse of
discretion in subjecting petitioner to difficulty and
travail before the movie was classified as "For adults
only" without deletion. However there is not enough
votes to consider the abuse of discretion grave as it
explained that there were reasons for its action because
of the scenes showing women erotically dancing naked
and kissing and caressing each other like lesbians. VV.
Notes: The movie involved in this case was "Kapit sa
Patalim" which the censors wanted to cut in some part
and to label "For Adults". The SC rules that movies are
within the constitutional protection of freedom of
expression, so that censorship is presumed to be valid as
constituting prior restraint. The only case when the
Board of Censors can order a deletion is when there is a
clear and present danger of a substantive evil against
national security or public morals or other public
interest. In all other cases, the Board can only
classify.

But a different standard must be followed in television

because of the pervasive and intrusive influence of the
medium on people who watch its programs without
having to pay anything.
On the issue of obscenity, the SC held that sex along is
not necessarily obscenity, the test being whether, using
contemporary community standards, the dominant
appeal us to the prurient interest. (Miller v. California).
Thus on this score, it found abuse of discretion of the
part of the Board for subjecting the producer to difficulty
and for entertaining a narrow view of obscenity, but it
lacked the votes to rules that the abuse was grave.
PEOPLE OF THE PHILIPPINES V. CITY COURT OF
MANILA || 154 SCRA 175 (1987)
Facts:
Agapito Gonzales and Roberto Pangilinan was accused of
violating Section 7 of RA 3060(An Act Creating the Board of
Censors for Motion Pictures) in relation to Article 201(Immoral
doctrines, obscene publications and exhibitions and indecent
shows) of the RPC.
On April 07, 1972, two information were filed against
the accused. The first one,
filed for violation of RA 3060 , alleged that the accused, without
having previously submitted to the Board of censors for Motion
Pictures for preview and examination, exhibited a motion film in a
public place. The second one, filed for violation of Article 201,
alleged that the accused exhibited motion pictures depicting
and showing scenes of totally naked female and male persons
with exposed private parts doing the sex act in various lewd and
obvious positions, among other similarly and equally obscene and

morally offensive scenes, in a place open to public view,to wit: at

Room 309, De Leon Building, Raon Street corner Rizal Avenue.
Accused Gonzales moved to quash the information in the
criminal case
for ground
of double jeopardy
as the case pending against him for violation of RA 3060,
allegedly contains the same allegations in the criminal case.
Respondent City Court (City Court of Manila, Branch 6)
dismissed the criminal case on the basis that the allegations in
the two information are identical and the plea entered in one case
by the accused herein can be reasonably seen as exposing him to
double jeopardy in the other case.
Petitioner
contends that the
accused
could not invoke the constitutional guarantee against double
jeopardy, when there had been no conviction, acquittal, dismissal
or termination of criminal proceedings in another case for the
same offense.

respondent's allegations. In other words, the offense defined in

section 7 of Rep. Act No. 3060 punishing the exhibition of motion
pictures not duly passed by the Board of Censors for Motion
Pictures does not include or is not included in the offense defined
in Article 201 (3) of the Revised Penal Code punishing the
exhibition of indecent and immoral motion pictures.
The two (2) offenses do not constitute a jeopardy to each other. A
scrutiny of the two (2) laws involved would show that the
two (2) offenses are different and distinct from each other.
It is evident that the elements of the two (2) offenses are
different. The gravamen of the offense defined in Rep. Act No.
3060 is the public exhibition of any motion picture which has
not been previously passed by the Board of Censors for
Motion Pictures. The motion picture may not be indecent or
immoral but if it has not been previously approved by the Board,
its public showing constitutes a criminal offense.

Issue:

Pita v. CA, 178 SCRA 362 (1989)

WON there was double jeopardy in the case at hand. NO

F: Pursuant to the Anti-Smut Campaign of Mayor Ramon

Bagatsng, policemen 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. Among the publications seized and
later burned was "Pinoy Playboy" magazines published
and co-edited by plaintiff Leo Pita. After his injunctive
relief was dismissed by the RTC and his appeal rejected
by CA, he seeks review with SC, invoking the guaranty
against unreasonable searches and seizure.

Held:
It is a settled rule that to raise the defense of double jeopardy,
three requisites must be present: (1) a first jeopardy must have
attached prior to the second; (2) the first jeopardy must have
been validly terminated; and (3) the second jeopardy must be for
the same offense, or the second offense includes or is necessarily
included in the offense charged in the first information, or is an
attempt to commit the same or a frustration thereof.
All these requisites do not exist in this case.
The two (2) informations with which the accused was charged,
do not make out only one offense, contrary to private

Issue: W/N the search and seizure was illegal

HELD: YES. It is basic that searches and seizure may be

done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In
Burgos v Chief of Staff (133 SCRA 800) , the SC
countermanded the orders of the RTC authorizing the
search of the premises WE Forum and Metropolitan
Mail, two Metro Manila Dailies, by reason of a defective
warrant.

and confiscating twenty-five (25) VHS tapes and ten (10)

different magazines, which they deemed pornographic,
Petitioners with Warren Tingchuy, were charged for
selling and exhibiting obscene copies of x-rated VHS
Tapes pursuant to Article 201of the Revised Penal Code.

There is a greater reason in this case 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 speech is speech, whether
political or "obscene". The authorities must apply for the
issuance of the search warrant from the judge, if in their
opinion, an obscenity rap is in order. They 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. The judge must determine WON the same are
indeed "obscene": the question is to be resolved on a
case-to-case basis and on the judge's sound discretion. If
probable cause exist, a search warrant will issue.

Court of Appeals affirming the Decision of the Regional

Trial Court of Manila is hereby affirmed.

Fernando vs CA
The National Police Criminal Investigation and Detection
Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the
name of Gaudencio E. Fernando Music Fair (Music Fair).
Judge Perfecto Laguio issued a search warrant against
Gaudencio E. Fernando and a certain Warren Tingchuy.
The warrant ordered the search of Gaudencio E.
Fernando Music Fair and the seizure of obscene pictures
and pornographic shows. After searching the premises

Whether or not obscenity is a ground for the State to

exercise its police power to restrain the Constitutional
guarantee of freedom of speech.

Obscenity is an unprotected speech which the State has

the right to regulate, the State in pursuing its mandate
to protect, as
parens patriae, the public from obscene, immoral and
indecent materials must justify the regulation
or limitation. Obscenity as defined in People v. Kottinger,
is something which is offensive to chastity, decency or
delicacy. In this case, the trial court found the
confiscated materials obscene and the Court of Appeals
affirmed such findings. Pictures of men and women in
the nude doing the sexual act appearing in the nine (9)
confiscated magazines and two (2) issues of QUI are
offensive to morals and are made and shown not for the
sake of art but rather for commercial purposes, that is
gain and profit as the exclusive consideration in their
exhibition. The pictures in the magazine exhibited
indecent and immoral scenes and acts. The exhibition of
the sexual act in their magazines is but a clear
and unmitigated obscenity, indecency and an offense
to public morals, inspiring lust and lewdness, exerting
a corrupting influence especially on the youth
Roth v US

Facts. The Respondent, the United States (Respondent),

passed a law that prohibited the mailing of obscene,
lewd, or lascivious book, pamphlet, picture, or other
publication of an indecent character. Petitioner was
convicted of violating this statute because he mailed
sexually explicit advertisements and a book to
requesters.

"knowingly to sell . . . to a minor" under 17 "(a) any

picture . . . which depicts nudity . . . and which is
harmful to minors," and "(b) any . . . magazine . . . which
contains [such pictures] and which, taken as a whole, is
harmful to minors." Appellant's conviction was affirmed
by the Appellate Term of the Supreme Court. He was
denied leave to appeal to the New York Court of Appeals.

Issue. Is obscenity protected speech under the First

Amendment
of the
United States
Constitution
(Constitution)?

Held:

Held. No. The federal law banning such speech is

constitutional as long as the appropriate standard of
obscene is used. Obscenity is not communication and is
without
social
value.
Dissent. This is punishing speech for the resulting
thought that it may invoke, not for the act itself.
Therefore, the law is unconstitutional.
Discussion. All discussions or depictions of sex are not
obscene. To be obscene the material must provide no
literary or social value and it must have a tendency to
excite lustful thoughts. This case is most famous for the
footnote describing obscenity as a shameful or morbid
interest in nudity, sex or exertion, and if it foes
substantially beyond customary limits of candor in
description or representation of such matter.

1. The magazines here involved are not obscene for

adults, and appellant is not barred from selling them to
persons 17 years of age or older.
2. Obscenity is not within the area of protected speech
or press, Roth v. United States, and there is no issue
here of the obscenity of the material involved, as
appellant does not argue that the magazines are not
"harmful to minors." 3. It is not constitutionally
impermissible for New York, under this statute, to
accord minors under 17 years of age a more restricted
right than that assured to adults to judge and determine
for themselves what sex material they may read and see.

Ginsberg v NY

(a) The State has power to adjust the definition of

obscenity as applied to minors, for even where there is
an invasion of protected freedoms, "the power of the
state to control the conduct of children reaches beyond
the scope of its authority over adults." Prince v.
Massachusetts.

Appellant, who operates a stationery store and

luncheonette, was convicted of selling "girlie" magazines
to a 16-year-old boy in violation of 484-h of the New
York Penal Law. The statute makes it unlawful

(b) Constitutional interpretation has consistently

recognized that the parents' claim to authority in the
rearing of their children is basic in our society, and the
legislature could properly conclude that those primarily

responsible for children's wellbeing are entitled to the

support of laws designed to aid discharge of that
responsibility.
(c) The State has an independent interest in protecting
the welfare of children and safeguarding them from
abuses.
(d) This Court cannot say that the statute, in defining
obscenity on the basis of its appeal to minors under 17,
has no rational relation to the objective of safeguarding
such minors from harm.
4. Subsections (f) and (g) of 484-h are not void for
vagueness.
(a) The New York Court of Appeals, in Bookcase, Inc. v.
Broderick, 18 N.Y.2d 71, 76, 218 N.E.2d 668, 671,
construed the definition of obscenity "harmful to minors"
in subsection (f) "as virtually identical to" this Court's
most recent statement of the elements of obscenity in
Memoirs v. Massachusetts, and accordingly the
definition gives adequate notice of what is prohibited,
and does not offend due process requirements..
(b) Since the New York Legislature's attention was
drawn to People v. Finkelstein, 9 N.Y.2d 342, 174 N.E.2d
470, which defined the nature of scienter for New York's
general obscenity statute, when it considered 484-h, it
may be inferred that the reference in provision (i) of
subsection (g) to knowledge of the "character and
content" of the material incorporates the gloss given the
term "character" in People v. Finkelstein.

(c) Provision (ii) of subsection (g) states expressly that a

defendant must be acquitted on the ground of "honest
mistake" if he proves that he made "a reasonable bona
fide attempt to ascertain the true age of such minor.
Affirmed.

Miller v California
Brief
Fact
Summary. The
Defendant,
Millers
(Defendant) conviction for mailing advertisements for
adult books to unwilling recipients was vacated and
remanded in an effort to shift the burden of obscenity
determinations to the state and local courts.
Synopsis of Rule of Law. In determining whether
speech is obscene, the basic guidelines for the trier of
fact must be: (a) whether the average person, applying
contemporary community standards would find the
material, taken as a whole, appeals to the prurient
interest of sex, (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.
Facts. The Defendant was convicted under the
California Penal Code for mailing advertisements for
adult
material
to
non-soliciting
recipients.
Issue. Whether state statutes may regulate obscene
material without limits?
Held. No. Judgment of the lower court vacated and
remanded for further proceedings. In determining
whether speech is obscene, the basic guidelines for the

trier of fact must be: (a) whether the average person,

applying contemporary community standards would
find the material, taken as a whole, appeals to the
prurient interest of sex, (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. The
Supreme Court of the United States (Supreme Court)
does not adopt as a constitutional standard the utterly
without redeeming social value test. If a state law that
regulates obscene material is thus limited, as written or
construed, First Amendment constitutional values are
adequately protected by the ultimate power of appellate
courts to conduct an independent review of
constitutional claims when necessary.
Dissent. To send men to jail for violating standards that
they cannot understand due to vagueness, denies them
of due process.
The statute in question is overbroad and thus,
unconstitutional.
Discussion. This case attempts a new definition and
clarification of obscenity while also trying to shift the
burden of obscenity determinations to the state and local
courts.

FCC v Pacifica Foundation

Brief Fact Summary. A satiric humorist named George

Carlin (Carlin) recorded a 12-minute monologue entitled
Filthy Words before a live audience in a California
theatre. Carlin began by referring to his thoughts about
the words that could not be said on the public airwaves.
Then, Carlin proceeded to list those words and repeat
them over and over again.
Synopsis of Rule of Law. The concept of indecent is
intimately connected with the exposure of children to
language that describes, in terms patently offensive as
measured by contemporary community standards for the
broadcast medium, sexual or excretory activities and
organs, at times of the day when there is reasonable risk
that children may be in the audience.
Facts. On October 30, 1973, at 2:00 p.m., a New York
radio station, owned by the Respondent, Pacifica
Foundation (Respondent) broadcast the Filthy Words
monologue. A few weeks later, a man who stated that he
heard the broadcast while driving with his young son,
wrote a letter complaining to the Petitioner, the Federal
Communications Commission (Petitioner). In response to
the complaint, the Respondent explained that the
monologue had been played during a program about
contemporary societys attitude toward language and
that, immediately before its broadcast, listeners had
been advised of the monologues language. The
Petitioner, after characterizing the language as patently
offensive, though not necessarily obscene, issued a
declaratory order granting the complaint, but not
imposing any formal sanctions. The Petitioner concluded
that the language as broadcast was indecent and
prohibited by 18 U.S.C. Section:1464, prohibiting the

broadcast of obscene, indecent or profane language. The

United
States
Court
of
Appeals
reversed.
Issue. Whether the Petitioner has any power to regulate
a radio broadcast that is indecent but not obscene?
Held. It is not necessary for the Petitioner to determine
that a communication is obscene before it may exercise
its regulatory power. The Petitioner can use its
regulatory power to channel indecent material to
times when children are not able, or much less likely, to
receive it. As a result, the Petitioners action is sustained
and the decision of the United States Court of Appeals is
reversed.
Dissent. An individual, in switching on a given radio
station, makes a decision to take part in an ongoing
public discourse. This action does not implicate the
fundamental privacy interests that the court is

concerned with.
Concurrence. The majoritys use of channeling will not
be effective because it is not possible to physically
separate an audience in todays world of broadcast
media.
Discussion. The decision was based upon the same
principles that are found within the law of nuisance. In
the case before the Supreme Court of the United States
(Supreme Court), the majority focused upon the
prospect that children may be listening to the broadcast
in question. Furthermore, the nature of radio is one in
which the audience is constantly tuning in and out and
prior warnings cannot adequately protect the listener.
Since children could be forever harmed by merely being
around when such a broadcast is made, the court found
that the Petitioner could regulate the Respondent
through channeling the indecent communication to a
more appropriate time and place. The fact that the
monologue was broadcast at 2:00 p.m. in the afternoon
made it more susceptible to regulation by the Petitioner.