Personal determination by judge
Due process in issues related to freedom of speech and the seizure of property,
even when actions are sanctioned by police power. The determination of what
constitutes obscenity is essentially a judicial question.
Leo Pita vs. Court of Appeals
G.R. No. 80806, SARMIENTO, October 05, 1989
Facts:
LEO PITA, doing business under the name and style of PINOY PLAYBOY, was
the petitioner against THE COURT OF APPEALS, RAMON BAGATSING, and
NARCISO CABRERA as respondents. The case involved discussions on the
constitutional law aspects of obscenity, the freedom of speech, and the processes
surrounding search and seizure. It tackled various standards and developments in
obscenity law, referencing previous rulings and highlighting the evolving nature of
the legal and societal understanding of what constitutes obscenity.
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
Among the publications seized, and later burned, was "Pinoy Playboy" magazines published
and co-edited by plaintiff Leo Pita.
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".
Issue/s:
The constitutionality of obscenity laws and how obscenity is determined.
The balance between freedom of speech and the state's power to regulate obscene
materials.
The procedure for and legality of searches and seizures in obscenity cases,
especially the necessity of a judicial warrant.
Held:
The court underscored the importance of adhering to contemporary community
standards to determine obscenity, shifting from isolated passages to the dominant
theme of the work. It stressed the need for a "clear and present danger" test to
justify state interference in regulating speech, including so-called obscene speech.
The burden of proof was placed on the state to demonstrate the existence of a clear
and present danger before taking action to ban or seize materials deemed obscene.
Searches and seizures related to alleged obscenity must be conducted with a
judicial warrant to be considered reasonable; otherwise, they are open to challenge.
A prescribed procedure was outlined for the procurement of a search warrant in
obscenity cases, emphasizing the need for judicial discretion and evaluation of
probable cause.
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 have been destroyed, the Court declines to grant affirmative
relief. To that extent, the case is moot and academic.
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, and other reading materials believed
to be obscene, pornographic and indecent and later burned the seized materials in
public at the University belt
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. He tfileden an injunction case against
the mayor
of manila to enjoin him from confiscating more copies of his magazine and
claimed that this was
a violation of freedom of speech. The court ordered him to show cause. He then
filed an Urgent
Motion for issuance of a temporary restraining order against indiscriminate seizure.
Defendant
Mayor Bagatsing admitted the confiscation and burning of obscence reading
materials but
admitted that these were surrendered by the stall owners and the establishments
were not
raided.
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 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. The CA also dismissed the appeal. Thus, this petition. Petitioner contends
that the CA
erred in 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.
Issue: whether or not the seizure of the questioned materials are constitutional
Held: No. 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.
According to the court, the test for obscenity is 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. However, the issue of when a publication has a corrupting tendency, or when
can it be said
to be offensive to human sensibilities has not yet been resolved. Kalaw-Katigbak
represented a
marked departure from Kottinger in the sense that it measured obscenity in terms
of the
"dominant theme" of the work, rather than isolated passages, which were central to
Kottinger.
He undertook to make the determination of obscenity essentially a judicial question
and as a
consequence, to temper the wide discretion Kottinger had given unto law
enforcers. The basic
guidelines established according to Miller vs. California, are: "(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.
Apparently, the courts have assumed that "obscenity" is not included in the
guaranty of
free speech, an assumption that has allowed a climate of opinions among
magistrates
predicated upon arbitrary, if vague theories of what is acceptable to society. In this
case, 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. But neither should we say
that
"obscenity" is a bare matter of opinion. 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. But the burden to show this lies
with the
authorities. There must be objective and convincing, not subjective or conjectural,
proof of the
existence of such clear and present danger.
