GONZALEZ VS KALAW KATIGBAK

FACTS: Petitioner was the producer of the movie Kapit But a different standard must be followed in television
sa Patalim which the Board of Review for Motion because of the pervasive and intrusive influence of the
Pictures and Televisions allowed on condition that medium on people who watch its programs without
certain deletions were made and that it was shown on having to pay anything.
adults only. The petitioner brought an action, claiming
violation of their freedom of expression. On the issue of obscenity, the SC held that sex along is
not necessarily obscenity, the test being whether, using
HELD:  Motion pictures are important both as a method contemporary community standards, the dominant
for the communication of ideas and the expression of the appeal us to the prurient interest. (Miller v. California). 
artistic impulse. The power of the Board is limited to the Thus on this score, it found abuse of discretion of the
classification of films. For freedom of expression is the part of the Board for subjecting the producer to difficulty
rule and restrictions the exception. The power to impose and for entertaining a narrow view of obscenity, but it
prior restraint is not to be presumed, rather the lacked the votes to rules that the abuse was grave.
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, PEOPLE OF THE PHILIPPINES V. CITY COURT OF
public morals, public health or any other legitimate MANILA || 154 SCRA 175 (1987)
public interest. The Board committed an abuse of
discretion in subjecting petitioner to difficulty and Facts:
travail before the movie was classified as "For adults
only" without deletion. However there is not enough  Agapito Gonzales and Roberto Pangilinan was accused of
votes to consider the abuse of discretion grave as it violating Section 7 of RA 3060(An Act Creating the Board of
explained that there were reasons for its action because Censors for Motion Pictures) in relation to Article 201(Immoral
of the scenes showing women erotically dancing naked doctrines, obscene publications and exhibitions and indecent
and kissing and caressing each other like lesbians.  VV. shows) of the RPC.

Notes:  The movie involved in this case was "Kapit sa  On April 07, 1972, two information were filed against
Patalim" which the censors wanted to cut in some part the accused. The first one,
and to label "For Adults".  The SC rules that movies are filed for violation of RA 3060 , alleged that the accused, without
within the constitutional protection of freedom of having previously submitted to the Board of censors for Motion
expression, so that censorship is presumed to be valid as Pictures for preview and examination, exhibited a motion film in a
constituting prior restraint.  The only case when the public place. The second one, filed for violation of Article 201,
Board of Censors can order a deletion is when there is a alleged that the accused exhibited motion pictures “depicting
clear and present danger of a substantive evil against and showing scenes of totally naked female and male persons
national security or public morals or other public with exposed private parts doing the sex act in various lewd and
interest.  In all other cases, the Board can only obvious positions, among other similarly and equally obscene and
classify.    
morally offensive scenes, in a place open to public view,to wit: at respondent's allegations. In other words, the offense defined in
Room 309, De Leon Building, Raon Street corner Rizal Avenue.” section 7 of Rep. Act No. 3060 punishing the exhibition of motion
  pictures not duly passed by the Board of Censors for Motion
 Accused Gonzales moved to quash the information in the Pictures does not include or is not included in the offense defined
criminal case for ground of double jeopardy in Article 201 (3) of the Revised Penal Code punishing the
as the case pending against him for violation of RA 3060, exhibition of indecent and immoral motion pictures.
allegedly contains the same allegations in the criminal case.  
The two (2) offenses do not constitute a jeopardy to each other. A
 Respondent City Court (City Court of Manila, Branch 6) scrutiny of the two (2) laws involved would show that the
dismissed the criminal case on the basis that the allegations in two (2) offenses are different and distinct from each
the two information are identical and the plea entered in one case other.
by the accused herein can be reasonably seen as exposing him to  
double jeopardy in the other case.  It is evident that the elements of the two (2) offenses are
different. The gravamen of the offense defined in Rep. Act No.
 Petitioner contends that the accused 3060 is the public exhibition of any motion picture which has
could not invoke the constitutional guarantee against double not been previously passed by the Board of Censors for
jeopardy, when there had been no conviction, acquittal, dismissal Motion Pictures. The motion picture may not be indecent or
or termination of criminal proceedings in another case for the immoral but if it has not been previously approved by the Board,
same offense. 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
Held: Bagatsng, policemen seized and confiscated from
dealers, distributors, newsstand owners and peddlers
 It is a settled rule that to raise the defense of double jeopardy, along Manila sidewalks, magazines, publications and
three requisites must be present: (1) a first jeopardy must have other reading materials believed to be obscene,
attached prior to the second; (2) the first jeopardy must have pornographic, and indecent and later burned the seized
been validly terminated; and (3) the second jeopardy must be for materials in public. Among the publications seized and
the same offense, or the second offense includes or is necessarily later burned was "Pinoy Playboy" magazines published
included in the offense charged in the first information, or is an and co-edited by plaintiff Leo Pita. After his injunctive
attempt to commit the same or a frustration thereof. relief was dismissed by the RTC and his appeal rejected
by CA, he seeks review with SC, invoking the guaranty
 All these requisites do not exist in this case. against unreasonable searches and seizure.

 The two (2) informations with which the accused was charged, Issue: W/N the search and seizure was illegal
do not make out only one offense, contrary to private
HELD: YES. It is basic that searches and seizure may be and confiscating twenty-five (25) VHS tapes and ten (10)
done only through a judicial warrant, otherwise, they different magazines, which they deemed pornographic,
become unreasonable and subject to challenge. In Petitioners with Warren Tingchuy, were charged for
Burgos v Chief of Staff (133 SCRA 800) , the SC selling and exhibiting obscene copies of x-rated VHS
countermanded the orders of the RTC authorizing the Tapes pursuant to Article 201of the Revised Penal Code.
search of the premises WE Forum and Metropolitan
Mail, two Metro Manila Dailies, by reason of a defective Whether or not obscenity is a ground for the State to
warrant. exercise its police power to restrain the Constitutional
guarantee of freedom of speech.

There is a greater reason in this case to reprobate the Court of Appeals affirming the Decision of the Regional
questioned raid, in the complete absence of a warrant, Trial Court of Manila is hereby affirmed.
valid or invalid. The fact that the instant case involves an
obscenity rap makes it no different from Burgos, a Obscenity is an unprotected speech which the State has
political case, because speech is speech, whether the right to regulate, the State in pursuing its mandate
political or "obscene". The authorities must apply for the to protect, as
issuance of the search warrant from the judge, if in their parens patriae, the public from obscene, immoral and
opinion, an obscenity rap is in order. They must convince indecent materials must justify the regulation
the court that the materials sought to be seized are or limitation. Obscenity as defined in People v.
"obscene" and pose a clear and present danger of an evil Kottinger, is something which is offensive to chastity,
substantive enough to warrant State interference and decency or delicacy. In this case, the trial court found
action. The judge must determine WON the same are the confiscated materials obscene and the Court
indeed "obscene": the question is to be resolved on a of Appeals affirmed such findings. Pictures of men and
case-to-case basis and on the judge's sound discretion. If women in the nude doing the sexual act appearing in the
probable cause exist, a search warrant will issue. 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
Fernando vs CA exhibition. The pictures in the magazine exhibited
The National Police Criminal Investigation and Detection indecent and immoral scenes and acts. The exhibition of
Group in the National Capital Region (PNP-CIDG NCR) the sexual act in their magazines is but a clear
conducted police surveillance on the store bearing the and unmitigated obscenity, indecency and an offense
name of Gaudencio E. Fernando Music Fair (Music Fair). to public morals, inspiring lust and lewdness, exerting
Judge Perfecto Laguio issued a search warrant against a corrupting influence especially on the youth
Gaudencio E. Fernando and a certain Warren Tingchuy.
The warrant ordered the search of Gaudencio E. Roth v US
Fernando Music Fair and the seizure of obscene pictures
and pornographic shows. After searching the premises
Facts. The Respondent, the United States (Respondent), picture . . . which depicts nudity . . . and which is
passed a law that prohibited the mailing of “obscene, harmful to minors," and "(b) any . . . magazine . . . which
lewd, or lascivious book, pamphlet, picture, or other contains [such pictures] and which, taken as a whole, is
publication of an indecent character.” Petitioner was harmful to minors." Appellant's conviction was affirmed
convicted of violating this statute because he mailed by the Appellate Term of the Supreme Court. He was
sexually explicit advertisements and a book to denied leave to appeal to the New York Court of
requesters. Appeals.

Issue. Is obscenity protected speech under the First Held:

Amendment of the United States Constitution
(Constitution)? 1. The magazines here involved are not obscene for
adults, and appellant is not barred from selling them to
Held. No. The federal law banning such speech is persons 17 years of age or older.
constitutional as long as the appropriate standard of
obscene is used. Obscenity is “not communication and is 2. Obscenity is not within the area of protected speech
without social value.” or press, Roth v. United States, and there is no issue
here of the obscenity of the material involved, as
Dissent. This is punishing speech for the resulting appellant does not argue that the magazines are not
thought that it may invoke, not for the act itself. "harmful to minors." 3. It is not constitutionally
Therefore, the law is unconstitutional. impermissible for New York, under this statute, to
accord minors under 17 years of age a more restricted
Discussion. All discussions or depictions of sex are not right than that assured to adults to judge and determine
obscene. To be obscene the material must provide no for themselves what sex material they may read and see.
literary or social value and it must have a tendency to
excite lustful thoughts. This case is most famous for the (a) The State has power to adjust the definition of
footnote describing obscenity as “a shameful or morbid obscenity as applied to minors, for even where there is
interest in nudity, sex or exertion, and if it foes an invasion of protected freedoms, "the power of the
substantially beyond customary limits of candor in state to control the conduct of children reaches beyond
description or representation of such matter.” the scope of its authority over adults." Prince v.
Massachusetts.

Ginsberg v NY (b) Constitutional interpretation has consistently

recognized that the parents' claim to authority in the
Appellant, who operates a stationery store and rearing of their children is basic in our society, and the
luncheonette, was convicted of selling "girlie" magazines legislature could properly conclude that those primarily
to a 16-year-old boy in violation of § 484-h of the New responsible for children's wellbeing are entitled to the
York Penal Law. The statute makes it unlawful support of laws designed to aid discharge of that
"knowingly to sell . . . to a minor" under 17 "(a) any responsibility.
(c) The State has an independent interest in protecting Miller v California
the welfare of children and safeguarding them from
abuses. Brief Fact Summary. The Defendant, Miller’s
(Defendant) conviction for mailing advertisements for
(d) This Court cannot say that the statute, in defining “adult” books to unwilling recipients was vacated and
obscenity on the basis of its appeal to minors under 17, remanded in an effort to shift the burden of obscenity
has no rational relation to the objective of safeguarding determinations to the state and local courts.
such minors from harm.
Synopsis of Rule of Law. In determining whether
4. Subsections (f) and (g) of § 484-h are not void for speech is obscene, the basic guidelines for the trier of
vagueness. fact must be: (a) whether “the average person, applying
contemporary community standards” would find the
(a) The New York Court of Appeals, in Bookcase, Inc. v. material, taken as a whole, appeals to the prurient
Broderick, 18 N.Y.2d 71, 76, 218 N.E.2d 668, 671, interest of sex, (b) whether the work depicts or
construed the definition of obscenity "harmful to minors" describes, in a patently offensive way, sexual conduct
in subsection (f) "as virtually identical to" this Court's specifically defined by the applicable state law, and (c)
most recent statement of the elements of obscenity in whether the work, taken as a whole, lacks serious
Memoirs v. Massachusetts, and accordingly the literary, artistic, political, or scientific value.
definition gives adequate notice of what is prohibited, Facts. The Defendant was convicted under the
and does not offend due process requirements.. California Penal Code for mailing advertisements for
“adult” material to non-soliciting recipients.
(b) Since the New York Legislature's attention was
drawn to People v. Finkelstein, 9 N.Y.2d 342, 174 N.E.2d Issue. Whether state statutes may regulate obscene
470, which defined the nature of scienter for New York's
material without limits?
general obscenity statute, when it considered § 484-h, it
may be inferred that the reference in provision (i) of Held. No. Judgment of the lower court vacated and
subsection (g) to knowledge of the "character and
remanded for further proceedings. In determining
content" of the material incorporates the gloss given the
term "character" in People v. Finkelstein.  whether speech is obscene, the basic guidelines for the
trier of fact must be: (a) whether “the average person,
(c) Provision (ii) of subsection (g) states expressly that a applying contemporary community standards” would
defendant must be acquitted on the ground of "honest
find the material, taken as a whole, appeals to the
mistake" if he proves that he made "a reasonable bona
fide attempt to ascertain the true age of such minor. prurient interest of sex, (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct
Affirmed. 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 Synopsis of Rule of Law. The concept of indecent is
Supreme Court of the United States (Supreme Court) intimately connected with the exposure of children to
does not adopt as a constitutional standard the “utterly language that describes, in terms patently offensive as
without redeeming social value” test. If a state law that measured by contemporary community standards for the
regulates obscene material is thus limited, as written or broadcast medium, sexual or excretory activities and
construed, First Amendment constitutional values are organs, at times of the day when there is reasonable risk
adequately protected by the ultimate power of appellate that children may be in the audience.
courts to conduct an independent review of
Facts. On October 30, 1973, at 2:00 p.m., a New York
constitutional claims when necessary.
radio station, owned by the Respondent, Pacifica
Foundation (Respondent) broadcast the “Filthy Words”
Dissent. To send men to jail for violating standards that monologue. A few weeks later, a man who stated that he
they cannot understand due to vagueness, denies them heard the broadcast while driving with his young son,
of due process. wrote a letter complaining to the Petitioner, the Federal
Communications Commission (Petitioner). In response to
The statute in question is overbroad and thus,
the complaint, the Respondent explained that the
unconstitutional. monologue had been played during a program about
contemporary society’s attitude toward language and
Discussion. This case attempts a new definition and that, immediately before its broadcast, listeners had
clarification of obscenity while also trying to shift the been advised of the monologue’s language. The
burden of obscenity determinations to the state and local Petitioner, after characterizing the language as patently
courts. offensive, though not necessarily obscene, issued a
declaratory order granting the complaint, but not
imposing any formal sanctions. The Petitioner concluded
FCC v Pacifica Foundation that the language as broadcast was indecent and
prohibited by 18 U.S.C. Section:1464, prohibiting the
Brief Fact Summary. A satiric humorist named George broadcast of obscene, indecent or profane language. The
Carlin (Carlin) recorded a 12-minute monologue entitled United States Court of Appeals reversed.
“Filthy Words” before a live audience in a California
Issue. Whether the Petitioner has any power to regulate
theatre. Carlin began by referring to his thoughts about a radio broadcast that is indecent but not obscene?
the words that could not be said on the public airwaves.
Then, Carlin proceeded to list those words and repeat Held. It is not necessary for the Petitioner to determine
them over and over again. 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 Petitioner’s 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 majority’s use of “channeling” will not
be effective because it is not possible to physically
separate an audience in today’s 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.