CONSTITUTIONAL LAW 2 - Pita v. CA, G.R. No.

80806

Republic of the Philippines By order dated December 8, 1 983 the Court set the hearing on the petition
SUPREME COURT for preliminary injunction on December 14,1983 and ordered the defendants
Manila to show cause not later than December 13, 1983 why the writ prayed for
should not be granted.
EN BANC
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a
temporary restraining order. against indiscriminate seizure, confiscation and
G.R. No. 80806 October 5, 1989
burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the
petition for preliminary injunction in view of Mayor Bagatsing's
LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner, pronouncement to continue the Anti-Smut Campaign. The Court granted the
vs. temporary restraining order on December 14, 1983.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.
In his Answer and Opposition filed on December 27,1983 defendant Mayor
William C. Arceno for petitioner. 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
Casibang, Perello and De Dios for private respondent. 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
SARMIENTO, J.: belonged to the magazine stand owners and peddlers who voluntarily
surrendered their reading materials, and that the plaintiffs establishment
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision was not raided.
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 The other defendant, WPD Superintendent, Narcisco Cabrera, filed no
unreasonable searches and seizures of the Constitution, as well as its prohibition against answer.
deprivation of property without due process of law. There is no controversy as to the facts. We
quote:
On January 5,1984, plaintiff filed his Memorandum in support of the
issuance of the writ of preliminary injunction, raising the issue as to
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by "whether or not the defendants and/or their agents can without a court order
the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the confiscate or seize plaintiffs magazine before any judicial finding is made on
Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police whether said magazine is obscene or not".
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 The restraining order issued on December 14,1983 having lapsed on
materials believed to be obscene, pornographic and indecent and later January 3,1984, the plaintiff filed an urgent motion for issuance of another
burned the seized materials in public at the University belt along C.M. Recto restraining order, which was opposed by defendant on the ground that
Avenue, Manila, in the presence of Mayor Bagatsing and several officers issuance of a second restraining order would violate the Resolution of the
and members of various student organizations. 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
Among the publications seized, and later burned, was "Pinoy Playboy" from date of its issuance.
magazines published and co-edited by plaintiff Leo Pita.

On January 9, 1984 defendant filed his Comment and/or Rejoinder

On December 7, 1983, plaintiff filed a case for injunction with prayer for Memorandum in support of his opposition to the issuance of a writ of
issuance of the writ of preliminary injunction against Mayor Bagatsing and preliminary injunction.
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 On January 11, 1984, the trial court issued an Order setting the case for
or circulation thereof claiming that the magazine is a decent, artistic and hearing on January 16, 1984 "for the parties to adduce evidence on the
educational magazine which is not per se obscene, and that the publication question of whether the publication 'Pinoy Playboy Magazine alleged (sic)
is protected by the Constitutional guarantees of freedom of speech and of seized, confiscated and/or burned by the defendants, are obscence per se
the press. or not".
CONSTITUTIONAL LAW 2 - Pita v. CA, G.R. No. 80806

On January 16, 1984, the Court issued an order granting plaintiffs motion to however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances
be given three days "to file a reply to defendants' opposition dated January of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate
9, 1984, serving a copy thereof to the counsel for the defendants, who may sense of the community reached by it." 9
file a rejoinder within the same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".
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
Plaintiff's supplemental Memorandum was filed on January 18, 1984. does a publication have a corrupting tendency, or when can it be said to be offensive to human
Defendant filed his Comment on plaintiff s supplemental Memorandum on sensibilities? And obviously, it is to beg the question to say that a piece of literature has a
January 20, 1984, and plaintiff filed his "Reply-Memorandum" to defendants' corrupting influence because it is obscene, and vice-versa.
Comment on January 25, 1984.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would
On February 3, 1984, the trial court promulgated the Order appealed from leave the final say to a hypothetical "community standard" whatever that is and that the
denying the motion for a writ of preliminary injunction, and dismissing the question must supposedly be judged from case to case.
case for lack of merit. 2
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows: Article 201 of the Revised Penal Code. Go Pin, was also even hazier:

We cannot quarrel with the basic postulate suggested by appellant that ...We agree with counsel for appellant in part. If such pictures, sculptures
seizure of allegedly obscene publications or materials deserves close and paintings are shown in art exhibit and art galleries for the cause of art,
scrutiny because of the constitutional guarantee protecting the right to to be viewed and appreciated by people interested in art, there would be no
express oneself in print (Sec. 9, Art. IV), and the protection afforded by the offense committed. However, the pictures here in question were used not
constitution against unreasonable searches and seizure (Sec. 3, Art.IV). It exactly for art's sake but rather for commercial purposes. In other words, the
must be equally conceded, however, that freedom of the press is not without supposed artistic qualities of said pictures were being commercialized so
restraint as the state has the right to protect society from pornographic that the cause of art was of secondary or minor importance. Gain and profit
literature that is offensive to public morals, as indeed we have laws would appear to have been the main, if not the exclusive consideration in
punishing the author, publishers and sellers of obscene publications (Sec. I , their exhibition; and it would not be surprising if the persons who went to
Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. see those pictures and paid entrance fees for the privilege of doing so, were
969). Also well settled is the rule that the right against unreasonable not exactly artists and persons interested in art and who generally go to art
searches and seizures recognizes certain exceptions, as when there is exhibitions and galleries to satisfy and improve their artistic tastes, but
consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or rather people desirous of satisfying their morbid curiosity and taste, and lust,
search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero and for love for excitement, including the youth who because of their
vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure immaturity are not in a position to resist and shield themselves from the ill
(See Papa vs. Magno, 22 SCRA 857). 3 and perverting effects of these pictures. 11

The petitioner now ascribes to the respondent court the following errors: xxx xxx xxx

1. The Court of Appeals erred in affirming the decision of the trial court and, As the Court declared, the issue is a complicated one, in which the fine lines have neither been
in effect, holding that the police officers could without any court warrant or drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question
order seize and confiscate petitioner's magazines on the basis simply of were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not
their determination that they are obscene. entitled to any constitutional protection.

2. The Court of Appeals erred in affirming the decision of the trial court and, It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the
in effect, holding that the trial court could dismiss the case on its merits "redeeming" element that should accompany the work, to save it from a valid prosecution. We
without any hearing thereon when what was submitted to it for resolution quote:
was merely the application of petitioner for the writ of preliminary
injunction. 4
...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
The Court states at the outset that it is not the first time that it is being asked to pronounce what obscenity and as offensive to morals. In those cases, one might yet claim
"obscene" means or what makes for an obscene or pornographic literature. Early on, in People that there was involved the element of art; that connoisseurs of the same,
vs. Kottinger, 5 the Court laid down the test, in determining the existence of obscenity, as follows: and painters and sculptors might find inspiration in the showing of pictures
"whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose in the nude, or the human body exhibited in sheer nakedness, as models
minds are open to such immoral influences and into whose hands a publication or other article in tableaux vivants. But an actual exhibition of the sexual act, preceded by
charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which acts of lasciviousness, can have no redeeming feature. In it, there is no
shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, room for art. One can see nothing in it but clear and unmitigated obscenity,
CONSTITUTIONAL LAW 2 - Pita v. CA, G.R. No. 80806

indecency, and an offense to public morals, inspiring and causing as it does, In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of
nothing but lust and lewdness, and exerting a corrupting influence specially police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply
on the youth of the land. ... 14 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.
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered
exhibition was attended by "artists and persons interested in art and who generally go to art
important literature today. 29 Goya's La Maja desnuda was once banned from public exhibition
exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the same
but now adorns the world's most prestigious museums.
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? 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.
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. 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
In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United
whether or not an "acceptable" solution is in sight.
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 Kottinger in the sense that it measured obscenity In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
in terms of the "dominant theme" of the work, rather than isolated passages, which were central definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced
to Kottinger (although both cases are agreed that "contemporary community standards" are the with the problem, which, after all, is the plaint specifically raised in the petition.
final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a consequence, to temper the
However, this much we have to say.
wide discretion Kottinger had given unto law enforcers.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not
It is significant that in the United States, constitutional law on obscenity continues to journey
its protection. In free expression cases, this Court has consistently been on the side of the
from development to development, which, states one authoritative commentator (with ample
exercise of the right, barring a "clear and present danger" that would warrant State interference
sarcasm), has been as "unstable as it is unintelligible." 19
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
Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly
without any redeeming social value," 21 marked yet another development.
"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
22
The latest word, however, is Miller v. California, which expressly abandoned Massachusettes, censorship that the ... authority does not rely solely on his own appraisal of what the public
and established "basic guidelines," 23 to wit: "(a) whether 'the average person, applying welfare, peace or safety may require." 34
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
"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the
specifically defined by the applicable state law; and (c) whether the work, taken as a whole,
clear and present danger test." 35
lacks serious literary, artistic, political, or scientific value." 24

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only
(A year later, the American Supreme Court decided Hamling v. United States 25 which
we may arrive at one-but rather as a serious attempt to put the question in its proper
repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously,
perspective, that is, as a genuine constitutional issue.
acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals"
portrayed on screen, although the film highlighted contemporary American sexuality.)
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.
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 As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
speech, an assumption that, as we averred, has allowed a climate of opinions among presumption is that the speech may validly be said. The burden is on the State to demonstrate
magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to
"[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It
it will ever do so until the Court recognizes that obscene speech is speech nonetheless, has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and
although it is subject as in all speech to regulation in the interests of [society as a whole] present danger), it must come to terms with, and be held accountable for, due process.
but not in the interest of a uniform vision of how human sexuality should be regarded and
portrayed." 28
CONSTITUTIONAL LAW 2 - Pita v. CA, G.R. No. 80806

The Court is not convinced that the private respondents have shown the required proof to justify Under the Constitution, on the other hand:
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
SEC. 3. The right of the people to be secure in their persons, houses,
materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way
papers, and effects against unreasonable searches and seizures of
of a search warrant.
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
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the determined by the judge, or such other responsible officer as may be
state has the right to protect society from pornographic literature that is offensive to public authorized by law, after examination under oath or affirmation of the
morals." 36 Neither do we. But it brings us back to square one: were the "literature" so complainant and the witnesses he may produce, and particularly describing
confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of the place to be searched, and the persons or things to be seized.
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
It is basic that searches and seizures may be done only through a judicial warrant, otherwise,
under the statute?
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
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant.
to seize property in disregard of due process. In Philippine Service Exporters, Inc. v. We have greater reason here to reprobate the questioned raid, in the complete absence of a
Drilon, 38 We defined police power as "state authority to enact legislation that may interfere with warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no
personal liberty or property in order to promote the general welfare ." 39Presidential Decrees Nos. different from Burgos, a political case, because, and as we have indicated, speech is speech,
960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities whether political or "obscene".
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
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules
to due process of law and the right against unreasonable searches and seizures, specifically.
then prevailing), provide:
Significantly, the Decrees themselves lay down procedures for implementation. We quote:

SEC. 12. Search without warrant of personarrested. A person charged

Sec. 2. Disposition of the Prohibited Articles. The disposition of the
with an offense may be searched for dangerous weapons or anything which
literature, films, prints, engravings, sculptures, paintings, or other materials
may be used as proof of the commission of the offense. 44
involved in the violation referred to in Section 1 hereof (Art. 201), RPC as
amended) shall be governed by the following rules:
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
(a) Upon conviction of the offender, to be forfeited in favor of the
are such charges being readied against any party, under Article 201, as amended, of the
Government to be destroyed.
Revised Penal Code.

(b) Where the criminal case against any violator of this decree results in an
We reject outright the argument that "[t]here is no constitutional nor legal provision which would
acquittal, the obscene/immoral literature, films, prints, engravings,
free the accused of all criminal responsibility because there had been no warrant," 45 and that
sculptures, paintings or other materials and articles involved in the violation
"violation of penal law [must] be punished." 46 For starters, there is no "accused" here to speak
referred to in Section 1 (referring to Art. 201) hereof shall nevertheless be
of, who ought to be "punished". Second, to say that the respondent Mayor could have validly
forfeited in favor of the government to be destroyed, after forfeiture
ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because,
proceedings conducted by the Chief of Constabulary.
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
(c) The person aggrieved by the forfeiture action of the Chief of petitioner.
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.
We make this resume.
The decision of the Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)
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;
Sec. 4. Additional Penalties. Additional penalties shall be imposed as
follows:
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
1. In case the offender is a government official or employee who allows the
substantive enough to warrant State interference and action;
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 3. The judge must determine whether or not the same are indeed
imposed .40 "obscene:" the question is to be resolved on a case-to-case basis and on
His Honor's sound discretion.
CONSTITUTIONAL LAW 2 - Pita v. CA, G.R. No. 80806

4. If, in the opinion of the court, probable cause exists, it may issue the ave been destroyed, the Court declines to grant affirmative relief. To that extent, the case is
search warrant prayed for; moot and academic.

5. The proper suit is then brought in the court under Article 201 of the SO ORDERED.
Revised Penal Code;
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and
6. Any conviction is subject to appeal. The appellate court may assess Regalado, JJ., concur.
whether or not the properties seized are indeed "obscene".
Fernan (C.J.), Narvasa and Feliciano, JJ., concur in the result.
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
Gutierrez, Jr., J., is on leave.

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