Libel (Unprotected Speech) Policarpio v. Manila Times – 5 SCRA 148 Lopez v. CA – 34 SCRA 116 New York Times Co. c. Sullivan – 376 US 254 Rosenbloom v. Metromedia, Inc. – 403 US 254 Gerts v. Robert Wlech – 418 US 323 Hustler v. Magazine – 485 US 46 In Re Jurado AM No. 90-5-2373, 4 LR 19 Aug’09 In Re Jurado – 243 SCRA 299 Vasquez v. CA – GR 118971 Sept. 15, 1999 Borjal v. CA – GR. 126466 Jan. 14, 1999 Vicario v. CA – GR 124491 June 1, 1999 Pader v. People – 325 SCRA 117 Fermin v. People, GR 157643, March 28, 2008 Obscenity (Unprotected Speech) Miller v. California – 37 L. Ed. 2d 419 Gonzales v. Kalaw-Katigbak – 137 SCRA 717 Pita v. CA – 178 SCRA 362 Barnes v. Glen Theater – 498 US 439 FCC v Pacifica Foundation – 438 US 726
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In Re: Emil Jurado A.M. No. 93-2-037 93-2-037 SC | April April 6, 1995 | 243 SCRA 299 TOPIC: Libel; TOPIC: Libel; Freedom of Speech SUMMARY: DOCTRINE: FACTS: ISSUE: RULING: RATIO:
A.M. No. 93-2-037 SC. April April 6, 1995.* 1995.*
IN RE EMIL (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its First Vice-President, Mr. Vicente R. Samson. Constitutional Law; Freedom of Expression; Freedom of the Press; The constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths. half-truths .—Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the Constitution. But every person exercising it is, as the Civil Code stresses, obliged “to act with justice, give everyone his due, and observe honesty and good faith.” The constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths— half-truths—this would not not be “to observe honesty and good faith;” it may not be used to insult others, destroy their name or reputation or bring them into disrepute —this would not be “to act with justice” or “give everyone his due.” _______________ * EN BANC. 300 300
SUPREME COURT REPORTS ANNOTATED ANNOTATED In Re: Emil P. Jurado Jurado Same; Same; Same; Right to Private Reputations; Protection of the right of individual persons to private reputations is also a matter of public interest and must be reckoned with as a factor in identifying and laying down the norms concerning the exercise of press freedom and free speech. speech.—In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to private reputation. Judges, by becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent standards of honesty, integrity, and competence than are commonly required from private persons. Nevertheless, persons who seek or accept appointment to the Judiciary cannot reasonably be regarded as having thereby forfeited any right whatsoever to private honor and reputation. For so to rule will be simply, in the generality of cases, to discourage all save those who feel no need to maintain their self-
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respect as a human being in society, from becoming judges, with obviously grievous consequences consequences for the quality of our judges and the quality of the justice that they will dispense. Thus, the protection of the right of individual persons to private reputations is also a matter of public interest and must be reckoned with as a factor in identifying and laying down the norms concerning the exercise of press freedom and free speech. Same; Same; Same; Same; Same; The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof .—Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide fide care in ascertaining the truth of the statements they publish. The norm does not require require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the recklessdisregard recklessdisregard of private reputation by publishing or circulating defamatory statements without any bona any bona fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines. 301 VOL. 243, APRIL 6, 1995 1995 301 In Re: Emil P. Jurado Jurado Same; Same; Same; Same; Same; Failure Same; Failure to “present the other side” is reprehensible, being what in law amounts to a denial of due process. process.—If relying on second-hand sources of information is, as the Journalists’ Code states, irresponsible, supra, supra, then indulging in pure speculation or gossip is even more so; and a failure to “present the
other side” is equally reprehensi ble, reprehensi ble, being what in law amounts to a denial of due process. Same; Same; Same; Same; Journalist’s Same; Journalist’s Code of Ethics; Jurado was gravely at fault, at the very least for disregarding the Journalist’s Code of Ethics— Ethics—in failing to exert bona fide efforts to verify the accuracy of his information. information .—The record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita Branch, to determine the accuracy of what he would later report. If he did, he would quickly have learned that his sources, whoever or whatever they were, were not to be relied upon. If he did not, he was gravely at fault— fault —at the very least for disregarding the Journalist’s Code of Ethics— in failing to exert bona fide efforts fide efforts to verify the accuracy of his information. Same; Same; Same; Same. Same.—In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered explanation: that the justices having confirmed their presence at the luncheon, thus corroborating what he had written in vital details and making further substantiation unnecessary, and that his report constituted fair comment on the public conduct of public officers, obviously does not at all explain why a party given by Atty. by Atty. Veto was Veto was reported by him as one tendered by Equitable by Equitable Bank. The Bank. The only conclusion that may rationally be drawn from these circumstances is that Jurado, unable to advance any plausible reason for the conspicuous divergence between what in fact transpired and what he reported, again resorts to semantics and sophistry to attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report and interpret the news; on the contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent for it, and his playing up of the Bank’s supposed role as such host have resulted in an improper suppression of those facts and a gross distortion of the truth about them. Remedial Law; Contempt; Courts; Courts; Contempt is punishable, even if committed without relation to a pending case .—Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring
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302 302
SUPREME COURT REPORTS ANNOTATED ANNOTATED In Re: Emil P. Jurado Jurado them into disrepute, even when made after the trial stage or after the end of the proceedings. The original doctrine laid down in People vs. Alarcon, Alarcon,—that there is no contempt if there is no pending case —has been abandoned in subsequent rulings rulings of this Court. Same; Same; Same; Same; The Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation, which tend to put it in disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner. manner .—Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a journalist, and asks why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated differently than his other colleagues in media who were only asked to explain their reports and comments about wrongdoing in the judiciary to the Ad the Ad Hoc Committee. Hoc Committee. The answer is that upon all that has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation, which tend to put it in disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner. Jurado has not been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn statements branding his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their publication. Same; Same; Same; Same; R.A. No. 53, Right of Refusal to Disclose Sources; The right of refusal refusal to disclose sources under R.A. No. 53 is without prejudice to liability under civil and criminal laws .—This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential; that he cannot be compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands such revelation. But it does hold that he cannot invoke such right as a shield against liability for printing stories that are untrue and derogatory of the courts, or
others. The ruling, in other words, is that when called to account for publications denounced as inaccurate and misleading, the journalist has the option (a) to demonstrate their truthfulness or accuracy even if in the process he disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In the latter event, however, he must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which he is unwilling or made no bona fide effort fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose sources is “without prejudice to ** 303 VOL. 243, APRIL 6, 1995 1995 303 In Re: Emil P. Jurado Jurado liability under civil and criminal laws.” Same; Same; Same; Same; R.A. No. 53 confers no immunity from prosecution for libel or for other sanction under the law. All it does is give the journalist the right to refuse (or not to be compelled) to reveal the source of any news report published by him which was revealed to him in confidence. confidence.—RA No. 53 thus confers no immunity from prosecution for libel or for other sanction under t he law. It does not declare that the publication of any news report or information which was “related in confidence” to the journalist is not actionable; such circumstance (of confidentiality) does not purge the publication of its character as defamatory, if indeed it be such, and actionable on that ground. All it does is give the journalist the right to refuse (or not to be compelled) to reveal the source of any news report published by him which was revealed to him in confidence. Same; Same; Same; Same; False reports about a public official or other person are not shielded from sanction by the cardinal right to free speech in the Constitution. Constitution.—It is worth stressing that false reports about a public official or other person are not shielded from sanction by the cardinal right to free speech enshrined in the Constitution. Even the most liberal view of free speech has never countenanced the publication of falsehoods, specially the persistent and unmitigated dissemination of patent lies. The U.S. Supreme Court, while asserting that “(u)nder the First Amendment there is no such thing thing as a false idea,” and that “(h)owever pernicious an opinion
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may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” (citing a passage from the first Inaugural Address of Thomas Jefferson), nonetheless made the firm pronouncement that “there is no constitutional value in false statements of fact,” and “the erroneous statement of fact is not worthy of constitutional protection (although) ** nevertheless inevitable in free debate.” “Neither the intentional lie nor the careless error,” it said, “materially advances society’s interest in ‘unhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They belong to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766 (1942).” Same; Same; Same; Same; The knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy 304 304 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado constitutional protection.—“The use of calculated falsehood,” it was observed in another case, “would put a different cast on the constitutional question. Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. ** ** (T)he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” Same; Same; Same; Same; Jurado’s actuations constitute contempt of court, directly tending to degrade or abase the administration of justice and the judges engaged in that function.—Jurado’s actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy and the injury that he might cause to the name and reputation of those of whom he
wrote. They constitute contempt of court, directly tending as they do to degrade or abase the administration of justice and the judges engaged in that function. By doing them, he has placed himself beyond the circle of reputable, decent and responsible journalists who live by their Code or the “Golden Rule” and who striv e at all times to maintain the prestige and nobility of their calling. MELO, J., Dissenting: Constitutional Law; Freedom of Expression; Freedom of the Press; In democratic governments, there must at all times be due regard for the preservation of constitutional rights even to the extent of seemingly sacrificing, as in the case at hand, accurate and truthful media comment .—In making a choice between the preservation of liberties and freedom, on one hand, and the attainment of a better—ordered society, on the other, men have not stopped debating. The balance, the point of the weighing scale, has moved hither and thither depending on the needs of the times and on the kind of government involved. But in democratic governments, there must at all times be due regard for the preservation of constitutional rights even to the extent, at times, of seemingly sacrificing, as in the case at hand, accurate and truthful media comment. PUNO, J., Dissenting: Constitutional Law; Freedom of the Press; Freedom of Expression; Right of Refusal to Disclose Sources; R.A. No. 1477 approved on June 15, 1956 prohibits revelation of “the source of any news-report on information related in confidence unless the court or a House or commit305 VOL. 243, APRIL 6, 1995 305 In Re: Emil P. Jurado tee of Congress finds that such revelation is demanded by the security of the State.”—In the Philippines, the shield law is provided by Republic Act No. 1477, approved on June 15, 1956 which prohibits
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revelation of “thesource of any news-report or information ... related in confidence ... unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State.” R.A. No. 1477 amended R.A. No. 53 by changing the phrase “interest of the State” to “security of theState.” The change limited the right of the State to share with newsmen their confidential sources of information. Same; Same; Same; Same; Exception; The protection of R.A. No. 53, as amended by R.A. No. 1477 to newsmen, provides but one ground which can force a newsman to reveal the source of his confidential information—when demanded by the security of the State .—The protection of R.A. No. 53, as amended by R.A. No. 1477, to newsmen should not be diminished as much as possible. Under this law, there is only one but one clear ground which can force a newsman to reveal the source of his confidential information — when demanded by the security of the State. It is instructive to remember the case of In re: Angel J. Parazo, where the Court adjudged newsman Parazoin contempt of court for refusing to divulge the source of his story regarding leakage of questions in some subjects in the 1948 Bar Examinations. It was contended by Parazo that under R.A. No. 53, he could only be compelled to reveal the source of his information when the “revelation is demanded by the interest of the State.” Parazoargued that “interest of the State” meant “security of State.” The Court rejected Parazo’s argument as it held that the two (2) terms are not synonymous, the first being broader than the second. It then ruled that the maintenance of high standard of the legal profession qualifies as an “interest of the State” the promotion of which is a good ground to compel newsmen to break the confidentiality of their sources of news. The Court ruling did not sit well with Congress. On June 15, 1956, Congress enacted R.A. No. 1477 which amended R.A. 53 by changing the phrase “interest of the State” to “security of State.” Same; Same; Same; Same; Clear and Present Danger Test; Evidence on record failed to prove clear and present danger to the administration of justice, hence, there is no need to task respondent to reveal the sources of his information .—To my mind, the case at bench should be and can be resolved by simply determining whether respondent’s columns, given their falsity and
slant, posed a clear and present danger to our administration of justice. My humble submission is that the evidence on record failed to prove this clear and present danger, and hence, there is no need to task respondent to reveal the sources of his information in order to prove that his reports about judicial corruption 306 306 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado are not patent falsehoods. The Court should always adopt an approach that is less destructive of freedom of speech and of the press. I reserve my full view on the longitude and latitude of a newsman’s right not to reveal the sources of his information in a more appropriate case. Same; Same; Same; Same; Same; Sancti ty of a newsman’s source of information is not only intended to protect a newsman but also the source of his information. When a person transmits confidential information to a newsman, he is exercising his freedom of speech on condition of anonymity.—There is another aspect of freedom of the press which the majority failed to consider. The sanctity of a newsman’s source of information is not only intended to protect a newsman but also the source of his information . When a person transmits confidential information to a newsman, he is exercising his freedom of speech on condition of anonymity. In Talley v. California, an ordinance which penalized the distribution of any handbill which did not identify its author was struck down as unconstitutional. It was held that “identificationand fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” It is thus arguable that a newsman by himself does not have the option to reveal or not to reveal the identity of his source of information. His source may have an independent right to the protection of his anonymity in the exercise of freedom of speech. This issue, however, need not be resolved in the case at bench but in a more appropriate setting. Be that as it may, I bewail the precipitate majority ruling that a newsman has an unqualified option to reveal the confidential source of his information for its inevitable effect is to discourage people from giving confidential information to the press. Again, the
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impairment of the flow of information to the public will suffer an irreparable harm. Same; Same; Same; Same; Same; In the absence of clear and convincing evidence that respondent knowingly foisted a falsehood to degrade administration of justice, Court should be slow in citing him for contempt .—The majority opinion also failed to consider that the columns of respondent dealt with the sensitive subject of corruption in courts. It cannot be gainsaid that corruption in government is a matter of highest concern to our citizenry. Yet it is a problem that defies solution primarily because it is a subject where people in the know maintain the countenance of a clam. Thus, the prosecution of corruption in government has not hit a high note and what now appears as the most effective restraint against corruption in government is the fear of the light of print. If the light of print continues to be a strong deterrent against government misdeeds, it is mainly because newsmen have an unimpeded access to information. On many an occasion, these confi307 VOL. 243, APRIL 6, 1995 307 In Re: Emil P. Jurado dential sources of information are the only leads to government malfeasance. To fashion a rule derogatory of the confidentiality of newsmen’s sources will result in tremendous loss in the flow of this rare and valuable information to the press and will prejudice the State’s policy to eliminate corruption in government. In the absence of clear and convincing evidence that respondent knowingly foisted a falsehood to degrade our administration of justice, we should be slow in citing him for contempt. The New York Times rule correctly warned us that occasional erroneous statements are “inevitable in free debate ... and must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need, to survive.’” Same; Same; Same; Function of the Press; As agent of the people, the most important function of the press is to inform and it cannot do so if it is uninformed .—I submit that the majority misappreciates the role of the press as a critic of government in a democratic society. The Constitution did not conceive the press to act as the cheer leader of government, including the judiciary. Rather, the press is
the agent of the people when it gathers news, especially news derogatory to those who hold the reins of government. The agency is necessary because the people must have all available information before they exercise their sovereign judgment. As well observed: “The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrument of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” As agent of the people, the most important function of the press in a free society is to inform and it cannot inform if it is uninformed. We should be wary when the independent sources of information of the press dry up, for then the press will end up printing “praise” releases and that is no way for the people to know the truth. Same; Same; Same; Right of Refusal to Disclose Sources; The protection to the sanctity of the sources of information of the press is for the benefit of the people. It is designed to benefit all of us to keep us above the cloud of ignorance.—In sum, I submit that the equation chosen by the majority has the pernicious effects of hobbling the writing hand of newsmen and of chilling the sources of information of the press. The majority can snicker against “bleeding heart” liberalism but this is a vain attempt to use a fig leaf to conceal its niggardly regard for freedom of speech and of the press. In a large measure, I fear that the majority opinion will weaken the press as an informed and informative source of 308 308 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado information of the sovereign people. In so doing, it will unwittingly erode the people’s right to discover the truth. The protection we give to the sanctity of the sources of information of the press is for the benefit of the people. It is designed to benefit all of us, to keep us above the cloud of ignorance. Democracy cannot bloom where sovereignty is rooted on the top soil of an ignorant mass.
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ADMINISTRATIVE MATTER in the Supreme Court. Contempt.
309 VOL. 243, APRIL 6, 1995 In Re: Emil P. Jurado
The facts are stated in the opinion of the Court. NARVASA,C.J .: Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges, is what is involved in the proceeding at bar —than which, upon its facts, there is perhaps no more appropriate setting for an inquiry into the limits of press freedom as it relates to public comment about the courts and their workings within a constitutional order.
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1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is needed, these being:
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1)that the utterance or publication by a person of falsehoods or half-truths, or of slanted or distorted versions of facts—or accusations which he made no bonafide effort previously to verify, and which he does not or disdains to prove—cannot be justified as a legitimate exercise of the freedom of speech and of the press guaranteed by the Constitution, and cannot be deemed an activity shielded from sanction by that constitutional guaranty;
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2)that such utterance or publication is also violative of “The Philippine Journalist’s Code of Ethics” which inter alia commands the journalist to “ scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by improper omission or emphasis,” and makes it his duty “to air the other side and to
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correct substantive errors promptly ;”1
3)that such an utterance or publication, when it is offensive to the dignity and reputation of a Court or of the judge presiding over it, or degrades or tends to place the courts in disrepute and disgrace or otherwise to debase the administration of justice, constitutes contempt of court and is punishable as such after due proceedings; and
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4)that prescinding from the obvious proposition that any aggrieved party may file a complaint to declare the utterer or writer in contempt, the initiation of appropriate contempt proceedings against the latter by the court is not only its prerogative but indeed its duty, imposed by the overmastering need to preserve and protect its authority and the integrity, independence and dignity of the nation’s judicial system.
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2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the “Manila Standard.” He describes himself as a columnist, who “incidentally happens to be a lawyer,” remarking that while he values his membership in the law profession, “such membership is neither a critical nor indispensable ad junct in the exercise of his occupation as a newspaperman.” 2 His column in the “ Manila Standard ” is entitled “Opinion.” Jurado had been writing about alleged improprieties and irregularities in the judiciary over several months (from about October, 1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At the same time, anonymous communications were being extensively circulated, by hand and through the mail, about alleged venality and corruption in
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the courts. And all these were being repeatedly and insistently adverted to by certain sectors of society. In light of these abnormal developments, the Chief Justice took an extraordinary step. H e issued Administrative Order No. _______________ 1 SEE footnote 16, infra. 2 Jurado’s Supplemental Comment, March 15, 1993. 310 310 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado 11-93 dated January 25, 1993, “Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary,”3 reading as follows: “WHEREAS, the Court’s attention has been drawn to the many and persistent rumors and unverified reports respecting corruption in the judiciary, said rumors and reports not only having been mentioned by media and in anonymous communications, but having also been adverted to by certain government officials and civic leaders. NOW, THEREFORE, by authority of the Court, an ad hoc committee is hereby constituted composed of Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain the truth respecting said reports and statements, and to this end, forthwith interview at closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the matter and who may be appealed to share that knowledge with the Court, and otherwise gather such evidence as may be available. The Committee is hereby authorized to use such facilities and personnel of the court as may be necessary or convenient in the fulfillment of its assigned mission, and shall submit its report to the Court within thirty (30) days.” Material to the present inquiry are Jurado’s pu blished statements from late 1992 to the middle of February, 1993.
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1.In his column of October 21, 1992, he wrote of “(j)udges in a number of regional trial courts in Metro Manila (who) have become so notorious in their dealings with litigants and lawyers that they are now called the ‘Magnificent _______________ 3 An additional paragraph was added by a subsequent administrative order (No. 11-93- A, Feb. 1, 1993) to the effect that “(i)n the event that the Chairman or any member of the Ad Hoc Committee be unable to take part in its proceedings at any session or hearing thereof, or should inhibit himself or herself therefrom, and to the end that the proceedings before the Ad Hoc Committee be not thereby delayed, Associate Justice Hilario G. Davide, Jr., Associate Justice Josue N. Bellosillo, and retired Justice Irene R. Cortes are, by the Court’s authority, designated Alternate Members of the Committee, to serve thereon for such time or at such sessions or hearings as the Chief Justice may determine.” 311 VOL. 243, APRIL 6, 1995 311 In Re: Emil P. Jurado
. Seven.’” He stated that “(i)t has come to a point where lawyers and litigants try their darndest to stay away from these judges. The answer, of course, is obvious.” .
2.In his February 3, 1993 column, he adverted to another group, also named “Magnificent Seven,” which, he said, should be distinguished from the first. He wrote: “When lawyers speak of the ‘Magnificent Seven’ one has to make sure which group they are referring to. Makati’s ‘Magnificent Seven’ are a bunch of Makati regional trial court judges who fix drug-related cases. The ‘Magnificent Seven’ in the Supreme Court consists of a group of justices who vote as one.”4
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3.Aside from the “Magnificent Seven,” he also wrote about a group which he dubbed the “ Dirty Dozen.” In his column of October 21, 1992 he said that there are “** 12 judges who have acquired such reputation for graft and corruption that they are collectively known as the ‘dirty dozen.’ These judges, I am told, are not satisfied with accepting bribes; they actually sell their decisions to the litigants that offer the larger bribe. Each of these judges reportedly has go-betweens who approach the litigants and ‘solicit’ their bids for what is clearly an auction for the judge’s decision.”
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According to him, the most corrupt judges now are Makati’s “Dirty Dozen” judges, supplanting some of those from Pasay. Pasig and Quezon City; corruption in lower Courts had been admitted by an Executive Judge in a Metro Manila Regional Trial Court (column of November 9, 1992); and because the “Dirty Dozen” had given Makati the reputation of having the most corrupt RTC in the country, multinationals and financing institutions explicitly stipulate in their agreements that litigation in connection with these contracts may be held anywhere in Metro Manila except in Makati; and lawyers confirm that Makati Judges, including some persons in the sheriff’s office, are the most corrupt, where before, Pasay and Quezon City had that dubious distinction (column of December 1, 1992). _______________ 4 SEE footnotes 12 and 19, infra. 312 312 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado
near the Court of Appeals building. He is known as the contact man of five CA divisions. Lawyers say that this former jurist really delivers.” In his column of January 29, 1993, he adverted to the same unnamed former Justice as being “known for fixing cases for five CA divisions (that is what he tells lawyers and litigants) for a fee. And if the price is right, the lawyer of the litigant paying can even write his own decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a restaurant owned by the wife of a former Marcos cabinet member and which has become a meeting place for judges, CA justices, practising lawyers, prosecutors and even Supreme Court justices. The former CA justice also has his own Chinese contact. After I exposed this last year, the habitues became scarce. But they are back again, and the ex-justice is still doing brisk business.”
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5.In his column of March 24, 1993, he made the claim that one can “get a temporary restraining order from a regional trial court in Metro-Manila by paying the judge anywhere between P30,000.00 and P50,000.00.” Other columns of Jurado refer to:
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a)a police report from the South Capital Command ** (to the effect) that 8 Makati judges were paid for decisions favoring drug-traffickers and other big-time criminals, naming the judges and giving detailed accounts of the bribery (January 30, 1993);
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b)a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had “hosted a lunch at its penthouse mainly for some justices, judges, prosecutors and law practitioners” (January 12, 1993);5
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4.In his November 9, 1992 column, he wrote about “a former appellate justice (who) ‘holds office’ at a restaurant
c)the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or more,
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depending on how much money is at stake, that a case is raffled off to a Judge who will be “extremely sympathetic,”
nomination of some worthy individuals was blocked because they “incurred the ire of the powers that be,” e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul Victorino, closely identified with former Senate President Salonga (January 25, 1993).
_______________ 5 SEE footnote 10, infra. 313 VOL. 243, APRIL 6, 1995 In Re: Emil P. Jurado
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and can arrange to have the Court issue attachments or injunctions for a service fee of 1% over and above the regular premium of the attachment or injunction bond; a Chinese-Filipino businessman who paid this “miracle worker” P300,000.00 on top of the regular premium on the attachment/injunction bond (October 27, 1992);
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d)Executive Judge de la Rosa, who “has unilaterally decided to discard the rule that cases seeking provisional remedies should be raffled off to the judges,” thus violating the rule that no case may be assigned in multi- sala courts without a raffle (January 28, 1993); and
.
e)the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to nominate him to the Court of Appeals; and a son and a nephew of JBC members, who were also nominated to the Court of Appeals, contrary to ethics and delicadeza (January 16, 1993; January 29, 1993); and
.
f)what he denominates “a major determinant of promotion,” i.e., having a relative in the JBC or the Supreme Court, or having a powerful politician as sponsor, citing specifically, the following nominees to the Court of Appeals — Conrado Vasquez, Jr., son and namesake of the Ombudsman and brother of the head of the Presidential Management Staff; Rosalio de la Rosa, “nephew of Justice Relova and cousin of Chief Justice Narvasa”; and the fac t that
. 313
3. Events Directly Giving Rise to the Proceeding at
Bar What may be called th e seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992, in the socalled “controversial case” of “ Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI),” G.R. No. 94374. In that decision the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr Justice Hugo E. Gutierrez, Jr. wrote the opinion for the major314 314 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado ity.6 A motion for reconsideration of the decision was filed in respondent’s behalf on September 16, 1992, which has recently been resolved. In connection with this case, G.R. No. 94374, the “ Philippine Daily Inquirer” and one or two other newspapers published, on January 28, 1993, a report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This gentleman, it appears, had been commissioned by one of the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the decision of Justice Gutierrez in relation to a few of his prior ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole or in part, by the latter. Yerkes proffered the conclusion that the Gutierrez decision “looks, reads and sounds like the writing of the PLDT’s counsel.” 7 As might be expected, the Yerkes “revelations” spawned more public discussion and comment about the judiciary and the Supreme Court itself, much of it unfavorable. There were calls for impeachment of the justices, for resignation of judges. There were insistent and more
11
widespread reiterations of denunciations of incompetence and corruption in the judiciary. Another derogatory epithet for judges was coined and quickly gained currency: “Hood-lums in Robes.” It was at about this time and under these circumstances—particularly the furor caused by the Yerkes opinion that the PLDT decision was authored by a PLDT lawyer—that Jurado wrote in his column on February 8, 1993, an item entitled, “Who will judge the Justices?” referring among other things to” ** (a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some _______________ 6 213 SCRA 16. 7 ETPI counsel, former Solicitor General Estelito Mendoza and former Law Dean Eduardo de los Angeles, have since declared that none of the lawyers or officers of the corporation had ever authorized the release of the Yerkes affidavit. In any event, Mr. Justice Gutierrez has since made public his own affidavit in indignant traverse of the Yerkes document; and two (2) other experts, commissioned by the PLDT, have submitted studies and reports impugning the Yerkes conclusions. 315 VOL. 243, APRIL 6, 1995 In Re: Emil P. Jurado time last year—andthat luxurious hotel accommodations and all their other expenses were paid by a public utility firm ** and that the trip ** was arranged by the travel agency patronized by this public utility firm.’”8 This was the event that directly gave rise to the proceeding at bar.
.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine Long Distance Telephone Company), addressed a letter to the Chief Justice, submitting his sworn statement in con futation of “the item in the
column of Mr. Emil P. Jurado of the Manila Standard on a vacation trip supposedly taken by six Justices with their families last year,” and requesting that the Court “take such action as may be appropriate.” In his affidavit, Samson made the following averments: 9 “* * *. While the name of the public utility which supposedly financed the alleged vacation of the Justices in HongKong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those who talked to me and the other officers of the PLDT after having read the Jurado column; 4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice, since the motions for reconsideration filed by the losing litigants therein, Eastern Telecommunications Philippines, Inc. and NTC are still pending before the Court, we have tried to refrain from making any public comments on these matters, lest any statement we make be interpreted to be an attempt on our 315 part _______________ 8 Italics and u nderscoring supplied. 9 Italics supplied. 316 316 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado to unduly influence the final decision of the Supreme Court in the above described case. However in the interest of truth and justice, PLDT is compelled to emphatically and categorically declare that it is not the public utility firm referred to in the Jurado column and that specifically, it has never paid for any such trip, hotel or other
12
accommodations for any justice of the Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have made the trip referred to in the Jurado c olumn;
.
5.I further state that neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible officer of PLDT about the matter quoted in par. 2 hereof;
.
6.PLDT further emphatically and categorically denies that it had ever talked to or made arrangements with any travel agency or any person or entity in connection with any such alleged trip of the Justices and their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;
.
7.The travel agencies which PLDT patronizes or retains for the trips, hotels or other accommodations of its officers and employees are:
.
a.Philway Travel Corporation, M-7 Prince Tower Cond. Tordesillas St., Salcedo Village Makati, Metro Manila
.
b.Citi-World Travel Mart Corp., Suite 3-4 Ramada Midtown Arcade M. Adriatico Street, Ermita, Manila The records of these travel agencies will bear out the fact that no arrangements were made by them at the instance of PLDT for the trip referred to in the Jurado column.
.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the “in-house counsel of Equitable Banking Corporation since 1958,” subscribed and sworn to on February 10, 1993, in relation to another article of Jurado.10 Veto deposed that on
Tuesday, January 5, 1993 he had “hosted a lunch party at the Officers’ Lounge, 7th Floor of the Equitable BankingCorporation Building, Ermita Branch ** upon prior permission ** obtained”; that the “expenses for said party were exclusiv ely from my personal funds and the food was prepared in my house by my wife and served by my house help ** and four (4) _______________ 10 SEE footnote 5, supra. 317 VOL. 243, APRIL 6, 1995 317 In Re: Emil P. Jurado waiters ** hired from the nearby Barrio Fiesta Restaurant”; that among the invited guests “were members of the Supreme Court and Court of Appeals who ** were my friends of forty years since our days in law school”; and that the party was held in the lounge of the bank instead of in “my residence” “unlike in former years ** because my birthday happened to fall on a working day and my friends from the Equitable Banking Corporation ** suggested that I hold it there (at the lounge) for their convenience because my residence is far from down to wn.” However, this birthday luncheon of Atty. Veto was reported in Jurado’s column (in the Manila Standard issues of January 12 and 28, 1993) as having been “hosted (by the Equitable Bank) at its penthouse mainly for some justices, judges, prosecutors and law practitioners **.” And upon this premise, Jurado indulged in the following pontification: “When those in the judiciary fraternize this way, what chances before the courts do other lawyers, who are not ‘batang club,’ have against others who belong to th e fraternity? In the case of prosecutors and fiscals, what chances do opposing counsels have against those in the fraternity?” (column of January 12, 1993)
.
c. Information from Ad Hoc Committee
13
At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order No. 11-93) to the following effect:
.
1)that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an invitation to Atty. Emiliano Jurado to appear before it ‘at 2 o’clock in the afternoon of February 4, 1993 ** (to) give the committee information that will assist it in its task,” i.e., to definitely and accurately determine the facts as regards the published rumors and reports of corruption in the judiciary;
.
2)that despite receipt of this letter by a responsible individual at the business address of Jurado, the latter failed to appear at the time and place indicated; that instead, in his column in the issue of Manila Standard of February 4, 1993, Jurado stated that he was told he was being summoned by the Ad HocCommittee, but “(t)here is really no need to summon me. The committee can go by the many things I have written in my column about corruption in the judiciary. Many of these column items have been borne out by subsequent events.” 318 318
SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado
obtaining evidence, or leads, on the matter. You have, I believe, expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we believe you will want to help the Court do precisely that, by furnishing the Committee with competent evidence, testimonial or otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt realize, being yourself a lawyer. We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to maintain and enforce order in its proceedings, and to compel obedience to its processes, it is not an adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions, on the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court itself, in which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidencegathering mission, the Ad Hoc Committee will submit its report and recommendations to the Court which will then take such action as it deems appropriate. The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice Hilario G. Davide, Jr. will preside as Chairman at these hearings since I will be unable to do so in view of earlier commitments. We reiterate our invitation that you come before the Committee, and you may opt to a ppear either on the 11th or 12th of February, 1993, at 2 o’clock in the afternoon.”
.
.
3)that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the Committee’s invitation, viz .: “It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session of February 4, 1992. All indications are that you are the person with the most knowledge about corruption in the judiciary and hence, appear to be best positioned to assist the Ad Hoc Committee in its function of
4)that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard, Jurado still failed to appear.
.
4. Statement of the Case: Resolutions and Pleadings
.
a. Resolution of February 16, 1993
14
After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered:
.
b. Jurado’s Comment dated March 1, 1993
As directed, Jurado filed his comment, dated March 1, 1993. He explained that he had not “snubbed” the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate in any investigation on corruption in the judiciary as this was what “his columns have always wanted to provoke.” What had happened, according to him, was that the first invitation of the Ad VOL. 243, APRIL 6, 1995 319 Hoc Committee was routed to his desk at the Manila Standard office on the day of the hearing itself, when it was already impossible to In Re: Emil P. Jurado cancel previous professional and business appointments; and the second invitation, “if it was ever received” by his office, was never . ered and acted upon as an official Court proceeding routed to him, and he had yet to see it.11 If the impression had for the determination of whether or not the all egations made by Atty. Emil Jurado herein specified are true; _______________
.
1)that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly DOCKETED, and hereafter consid-
319
.
2)that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area, Manila; and copies of the same PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince Tower Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;
.
3)that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT letter and affidavit, the Philway Travel Corporation and the Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT affirming or denying the contents of the PLDT affidavit; and
.
4)that within fifteen (15) days from his receipt of notice of this resolution and of copies of said PLDT letter and affidavit and of the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on said affidavits as well as the allegations made by him in his columns, herein specified, in which he shall make known to the Court the factual or evidentiary bases of said allegations.
11 N.B. However, in his column of Feb. 4, 1993, he had written: “There is really no need (for the Ad HocCommittee) to summon me. The committee can go by the many things I have written in my column about corruption in the judiciary **.” 320 320 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado been created that he had indeed “snubbed” the Ad Hoc Committee, he “sincerely apologizes.” He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on what he had written. He expressed his firm belief that justice can be administered only by a judicial system that is itself just and incorruptible, and the hope that this Court would view his response in this light. He also made the following specific observations:
.
1.The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the affiant’s belief and opinion and he (Jurado) would not comment on it except to
15
say that while Mr. Samson is entitled to his beliefs and opinions, these “bind only him and the PLDT.”
.
and Bar Council echo the public perception, and constitute fair comment on a matter of great public interest and concern.
.
2.Atty. William Veto’s affidavit substantially corroborated what he had written in vital details; hence, further substantiation would be surplusage. In fact, the Supreme Court had confirmed the story in its press statement quoted by him (Jurado) in his January 30, 1993 column. His column about the Veto party constitutes fair comment on the public conduct of public officers.
.
6.His columns with respect to the “RTC’s Magnificent Seven” (October 20, 1992); the “RTC -Makati’s Dirty Dozen” (October 2, 1992, November 9, 1992, and December 1, 1992); the “Magnificent Seven” in the Supreme Court (February 3, 1993); 12 the lady secretary of an RTC Judge (October 27, 1992); and the former Court of Appeals Justice “fixing” cases (January 29, 1993) were all based on information give to him in strict confidence by sources he takes to be highly reliable and credible; and he could not elaborate on the factual and evidentiary basis of the information without endangering his sources. By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but also on information from sources he has found by experience to be trustworthy. He cannot compromise these sources. He invokes Republic Act No. 53, as amended by R.A. No. 1477, exempting the publisher, editor or reporter of any publication from revealing the source of published news or information obtained in confidence, and points out that none of the matters subject of his columns has any bearing on the security of the state.
.
3.The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge Teresita DyLiaco Flores on the actuations of Judge de la Rosa and called the attention of the Court theret o, Judge Flores’ complaint, a copy of which had been sent to the Court Administrator, being one meriting its attention.
.
4.The “factual and evidentiary basis” of his column of January 30, 1993 was the police report on seven (7) Makati judges authored by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU, South CAPCOM, PNP, addressed to Vice-President Joseph E. Estrada, a copy of which he had received in the newsroom of the Manila Standard. The existence of the report had been affirmed by a reporter of the Manila Standard, Jun Burgos, when he appeared at the hearing of the Ad Hoc Committee on January 11, 1993.
.
.
5.His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives in the Judicial 321 VOL. 243, APRIL 6, 1995 In Re: Emil P. Jurado
321
c. Resolution of March 2, 1993
Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado’s comment above mentioned, the Court received the affidavits of the executive officials of the two travel agencies mentioned in the affidavit of PLDT Executive Vice-President Vicente R. Samson—in relation to the Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-World Travel Mart Corporation, dated February 22, 1993, and that of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation, dated February
16
19, 1993. Both denied ever having made any travel arrangements for any of the Justices of the Supreme Court or their families to Hongkong, _______________ 12 SEE footnotes 4, supra, and 19, infra. 322 322 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado clearly and categorically belying the Jurado article. By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that he submit comment thereon, if desired, within ten (10) days from receipt thereof.
.
d. Jurado’s Supplemental Comment with Request for Clarification
Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the Resolutions of February 16 and March 2, 1993 had been addressed to him (according to his own depiction) in his capacity as “a full -time journalist” “who coincidentally happens to be a member of the bar at the same time,” and granted him fifteen (15) days from notice “to qualify his comment and/or assert his rights and privileges ** in an appropriate manifestation or pleading.”
.
f. Jurado’s Manifestation dated March 31, 1993
Again in response, Jurado filed a “Manifestation” under date of March 31, 1993. He moved for the termination of the proceed323 VOL. 243, APRIL 6, 1995 323 In Re: Emil P. Jurado ing on the following posited premises:
.
In response, Jurado filed a pleading entitled “Supplemental Comment with Request for Clarification” dated March 15, 1993. In this pleading he alleged that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters of their own personal knowledge; that he (Jurado) had no specific knowledge of “the contents of these, let alone their veracity”; and that the affidavits “bind no one except the affiants and possibly the PLDT.” He also sought clarification on two points —as to the capacity in which he is being cited in these administrative proceedings— whether “as full time journalist or as a member of the bar,” and why he is being singled out, from all his other colleagues in media who had also written about wrongdoings in the judiciary, and required to comment in a specific administrative matter before the Court sitting En Banc— so that he might “qualify his comment and/or assert his right and privileges **.”
.
1.The court has no administrative supervision over him as a member of the press or over his work as a journalist.
.
2.The present administrative matter is not a citation for (a) direct contempt as there is no pending cases or proceeding out of which a direct contempt charge against him may arise, or (b) indirect contempt as no formal charge for the same has been laid before the court in accordance with Section 3 (Rule 71) of the Rules of Court.
.
3.His comments would be more relevant and helpful to the Court if taken together with the other evidence and reports of other journalists gathered before the Ad Hoc Committee. He perceives no reason why his comments should be singled out and taken up in a separate administrative proceeding.
e. Resolution of March 18, 1993
17
It is against this background of the material facts and occurrences that the Court will determine Jurado’s liability, if any, for the above mentioned statements published by him, as well as “such action as may be appropriate” in the premises, as the PLDT asks.
.
5. Norms for Proper Exercise of Press Freedom
.
a.Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional guarantee of free speech and the reality that there are fundamental and equally important public interests which need on occasion to be balanced against and accommodated with one and the other. There, the Court stressed the importance of the public interest in the maintenance of the integrity and orderly functioning of the administration of justice. The Court said:13 “The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of free speech. He also in _______________ 13 166 SCRA at 353-355; emphasis in the original. 324 324 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado vokes the related doctrines of qualified privileged communications and fair criticism in the public interest. Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the
administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter put it: ‘*** A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.’ (Concurring in Pennekamp v. Florida, 328 U.S. 331 at 354- 356 [1946]). Mr. Justice Malcolm of this Court expressed the same thought in the following terms: “The Organic Act wisely guarantees freedom of speech and press. This constitutional right must be protected in its fullest extent. The Court has heretofore given evidence of its tolerant regard for charges under the Libel Law which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the citizens must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizens should not be confused with liberty in its true sense. As important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary. Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes, and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the 325 VOL. 243, APRIL 6, 1995 325 In Re: Emil P. Jurado court.’ (In Re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).”
18
.
b.Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise, viz .: “ART.19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.” The provision is reflective of the universally accepted precept of “abuse of rights,” “one of the most dominant principles which must be deemed always implied in any system of law.”14 It parallels too “the supreme norms of justice which the law develops” and which are expressed in three familiar Latin maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to live honorably, not to injure others, and to render to every man his due). 15 Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the Constitution. But every person exercising it is, as the Civil Code stresses, obliged “to act with justice, give everyone his d ue, and observe honesty and good faith.” The constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths —this would not be “to observe honesty and good faith”; it may not be used to insult others, destroy their name or reputation or bring them into disrepute —this would not be “to act with justice” or “give everyone his due.”
.
c. Philippine Journalist’s Code of Ethics
Also relevant to the determination of the propriety of Jurado’s acts subject of the inquiry at bar are the norms laid down in “The Philippine Journalist’s Code of Ethics.” The Code was published _______________ 14 Tolentino, The Civil Code of the Philippines, Commentaries and Jurisprudence, 1983 ed., Vol. 1, p. 71, citing 1 Cammarota 159. 15 Op. cit ., at p. 63, citing Borrell Macia, pp. 87-89. 326
326
SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado in the issue of February 11, 1993 of the Manila Standard, for which Jurado writes, as part of the paper’s “Anniversary Supplement.” The first paragraph of the Code, 16 and its corresponding annotations, read as follows:
.
“I.I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by improper omission or emphasis. I recognize the duty to air the other side and the duty to correct substantive errors promptly .
.
1.Scrupulous news gathering and beat coverage is required. Relying exclusively on the telephone or on what fellow reporters say happened at one’s bea t is irresponsible.
.
2.The ethical journalist does not bend the facts to suit his biases or to please benefactors. He gathers all the facts, forms a hypothesis, verifies it and arrives at an honest interpretation of what happened.
. 3.The duty to air the other side means that the journalist must contact the person or persons against whom accusations are lodged. A court proceeding provides for this balance by presenting the prosecution and then the defense. A news story or editorial column that fails to present the other side is like a court that does not hear the side of the defense. .
4.Correcting substantive errors is the mark of mature newspapers like the New York Times, the International Herald Tribune, and some of Manila’s papers.”
.
d. Right to Private Honor and Reputation
19
In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to private reputation. Judges, by becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent standards of honesty, integrity, and competence than are commonly required from private persons.17 Nevertheless, persons who seek or accept _______________
in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the recklessdisregard of private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines.17a
. 16 SEE footnote 1, page 2, supra. 6. Analysis of Jurado Columns 17 E.g., Castillo v. Calanog, Jr., 199 SCRA 75 (1991); Patricia T. Junio v. Judge Pedro C. Rivera, Jr., A.M. No. MTJ-91-565, Aug. 30, . a.Re “Public Utility Firm” 1993; Media v. Pamaran, 160 SCRA 457 (1988); Office of the Court Administrator v. Gaticales, 208 SCRA 508 (1992); Vistan v. Nicolas, Now, Jurado’s allegation in his column of February 8, 1993—“that six 327 justices, their spouses, children and grandchil VOL. 243, APRIL 6, 1995 327 In Re: Emil P. Jurado _______________ appointment to the Judiciary cannot reasonably be regarded as having thereby forfeited any right whatsoever to private honor and 201 SCRA 524 (1991); NISA v. Tablang, 199 SCRA 766 (1991). reputation. For so to rule will be simply, in the generality of cases, to 17a SEE,e.g., Ayer Productions Pty. Ltd v. Capulong, 160 SCRA discourage all save those who feel no need to maintain their self861 (1988). respect as a human being in society, from becoming judges, with 328 obviously grievous consequences for the quality of our judges and the 328 SUPREME COURT REPORTS ANNOTATED quality of the justice that they will dispense. Thus, the protection of In Re: Emil P. Jurado the right of individual persons to private reputations is also a matter dren (a total of 36 persons) spent a vacation in Hong Kong some time of public interest and must be reckoned with as a factor in identifying last year—andthat luxurious hotel accommodations and all their and laying down the norms concerning the exercise of press freedom other expenses were paid by a public utility firm and that the trip and free speech. reportedly was arranged by the travel agency patronized by this Clearly, the public interest involved in freedom of speech and the public utility firm,” supra, is—in the context of the facts under which individual interest of judges (and for that matter, all other public it was made—easily and quickly preceived as a transparent officials) in the maintenance of private honor and reputation need to accusation that the PLDT had bribed or “rewarded” six (6) just ices be accommodated one to the other. And the point of adjustment or for their votes in its favor in the case of “ Philippine Long Distance accommodation between these two legitimate interests is precisely Telephone Company v. Eastern Telephone Philippines, Inc. found in the norm which requires those who, invoking freedom of (ETPI),” G.R. No. 94374,18 by not only paying all their expenses—i.e., speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care 20
hotel accommodations and all other expenses for the trip — but also by having one of its own travel agencies arrange for such a trip. As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of its responsible officers, Mr. Vicente Samson, as well as by the heads of the two (2) travel agencies “patronized by it,” Ermin Garcia, Jr. and Marissa de la Paz, supra. That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if unable to do either of these things, to offer to atone for the harm caused. But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in any manner whatever the emphatic declaration of PLDT Vice-President Samson that— While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hong Kong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phil., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or
“ ** (the PLDT) has never paid for any such trip, hotel or other accommodations for any justice of the Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have made the trip referred to in the Jurado column; ** neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible officer of PLDT about the matter ** **; ** PLDT ** ** (never) talked to or made arrangements with any travel agency or any person or entity in connection with any such alleged trip of the Justices and their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove ; What appears from the record is that without first having made an effort to talk to any one from the PLDT or the Supreme Court to ascertain the veracity of his serious accusation, Jurado went ahead and published it. His explanation for having aired the accusation consists simply of a declaration that Samson’s affidavit, as well as the affidavits of the heads of the two travel agencies regularly patronized by it, were just assertions of the affiants’ belief and opinion; and that he (Jurado) would not comment on them except to say that while they are entitled to their beliefs and opinions, these were binding on them only. This is upon its face evasion of duty of the most cavalier kind; sophistry of the most arrant sort. What is made plain is that Jurado is in truth unable to challenge any of the averments in the affidavits of PLDT and its travel agencies, or otherwise substantiate his _______________ accusation, and that his is a mere resort to semantics to justify the unjustifiable. What is made plain is that his accusation is false, and 18 SEE footnote 6, supra. possesses not even the saving grace of honest error. 329 VOL. 243, APRIL 6, 1995 329 If relying on second-hand sources of information is, as the Journalists’ Code states, irresponsible, supra, then indulging in pure In Re: Emil P. Jurado speculation or gossip is even more so; and a failure to perception of those who talked to me and the other officers of the 330 PLDT after having read the Jurado column.” 330 SUPREME COURT REPORTS ANNOTATED The record shows that he made no effort whatsoever to impugn, In Re: Emil P. Jurado modify, clarify or explain Samson’s positive assertion that:
21
“present the other side” is equally reprehensible, being what in law amounts to a denial of due process.
.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto (the “in -house counsel of Equitable Banking Corporation since 1958”) as to project a completely false depiction of it. His description of that affair (in the Manila Standard issues of January 12 and 28, 1993) as having been hosted by the Equitable Bank “at its penthouse mainly for some justices, judges, prosecutors and law practitioners **,” carries the sanctimonious postscript already quoted, putting the rhetorical question about how such fraternization affects the chances in court of lawyers outside that charmed circle. When confronted with Veto’s affidavit to the effect that the party was given by him at his (Veto’s) own expense, the food having been prepared by his wife in his house, and served by his house help and waiters privately hired by him; that he had invited many persons including friends of long standing, among them justices of the Supreme Court and the Court of Appeals; and that the party had been held in the Officers’ Lounge of Equitable Bank, instead of his home, as in years past, to suit the convenience of his guests because his birthday fell on a working day, Jurado could not, or would not deign to, contradict any of those statements. He merely stated that Veto’s affidavit substantially corroborated what he had written in vital details, which is obviously far from correct. Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita Branch, to determine the accuracy of what he would later report. If he did, he would quickly have learned that his sources, whoever or whatever they were, were not to be relied upon. If he did not, he was gravely at fault—at the very least for disregarding the Journalist’s Code of Ethics—in failing to exert bona fide efforts to verify the accuracy of his information. In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered
331 VOL. 243, APRIL 6, 1995 331 In Re: Emil P. Jurado explanation: that the justices having confirmed their presence at the luncheon, thus corroborating what he had written in vital details and making further substantiation unnecessary, and that his report constituted fair comment on the public conduct of public officers, obviously does not at all explain why a party given by Atty. Veto was reported by him as one tendered by Equitable Bank. The only conclusion that may rationally be drawn from these circumstances is that Jurado, unable to advance any plausible reason for the conspicuous divergence between what in fact transpired and what h e reported, again resorts to semantics and sophistry to attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report and interpret the news; on the contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent for it, and his playing up of the Bank’s supposed role as such host have resulted in an improper suppression of those facts and a gross distortion of the truth about them.
.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of February 3, 1993 already adverted to,19 and more fully quoted as follows: “When lawyers speak of the ‘Magnificent Seven’ one has to make sure which group they are referring to. Makati’s ‘Magnificent Seven’ are a bunch of Makati regional trial court judges who fix drug-related cases. The ‘Magnificent Seven’ in the Supreme Court consists of a group of justices who vote as one .” About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes of the Supreme Court Reports Annotated (SCRA) in which are reported the decisions of the Supreme Court En Banc for the year 1992 (January to December) and for January 1993, divulge not a single nonunanimous decision or resolution where seven (7) justices voted “as
22
one,” nor any group of decisions or resolutions where the recorded votes would even suggest the existence of _______________ 19 SEE footnotes 4 and 12, supra. 332 332 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado such a cabal. This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by invoking unnamed and confidential sources which he claims he considers highly credible and reliable and which would be imperilled by elaborating on the information furnished by them. He would justify reliance on those sources on grounds of necessity, custom and usage and claim the protection of Republic Act No. 53, as amended by Republic Act No. 1477 from forced revelation of confidential news sources except when demanded by the security of the state.20 Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a newsman may escape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists’ Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those sources. Jurado’s other writings already detailed here are of the same sort. While it might be tedious to recount what has already been stated about the nature and content of those writings, it is necessary to do so briefly in order not only to stress the gravity of the charges he
makes, but also to demonstrate that his response to the call for their substantiation has been one of unvarying intransigence: an advertence to confidential sources with whose reliability he professes satisfaction and whom fuller disclosure would supposedly compromise. There can be no doubt of the serious and degrading character —not only to the Court of Appeals, but also to the judiciary in _______________ 20 SEE p. 10, supra. 333 VOL. 243, APRIL 6, 1995 333 In Re: Emil P. Jurado general—of his columns of November 9, 1992 and January 29, 1993 concerning an unnamed former justice of the Court of Appeals who had allegedly turned “fixer” for five of the Court’s divisions and who, for the right price, could guarantee that a party’s lawyer could write his own decision for and in the name of the ponente; and of his column of March 24, 1993 to the effect that anywhere from P30,000 to P50,000 could buy a temporary restraining order from a regional trial court in Manila. The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues:
.
(a)Jurado’s column of January 30, 1993 about eight (8) Makati judges who were “handsomely paid” for decisions favoring drug-traffickers and other big-time criminals was based on nothing more than raw intelligence contained in a confidential police report. It does not appear that any part of that report has been reliably confirmed.
. (b)He has refused to offer any substantiation, either before the Ad HocCommittee or in this proceeding, for his report of October 27, 1992 concerning an unnamed lady secretary of a Makati RTC Judge who, besides earning at least P10,000 for making sure a case is raffled off to a 23
“sympathetic” judge, can also arrange the issuance of attachments and injunctions for a fee of one (1%) percent over and above usual premium for the attachment or injunction bond, a fee that in one instance amounted to P300,000.
nominations to the Court of Appeals on considerations other than of merit or fitness, through the manipulations of the Council’s Secretary, Atty. Daniel Martinez; or because the nominee happens to be a relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially identified as Judge Rosalio de la Rosa) or of the Supreme Court (he could name none so situated); or has a powerful political sponsor (referring to RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of the truth of these statements is precluded, not only by the familiar and established presumption of regularity in the performance of official functions, but also, and even more conclusively by the records of the Judicial and Bar Council itself, which attest to the qualifications of Atty. Daniel Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la Rosa, and Judge Conrado Vasquez, Jr. for membership in the Appellate Tribunal;
.
(c)His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary to ethics and delicadeza in nominating to the Court of Appeals a son and a nephew of its members is completely untrue. The most cursory review of the records of the Council will show that since its organization in 1987, there has not been a single instance of any son or nephew of a member of the Council being nominated to the Court of Appeals during said member’s incumbency; and in this connection, he mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice (and then Member of the Judicial and Bar Council) Lorenzo Relova when the truth, which he subsequently learned and admitted, was that the person referred to was Judge Joselito de la Rosa, the son-in334 334
.
(e)Equally false is Jurado’s report (column of January 25, 1993) that nomination to the Court of Appeals of some worthy individuals like Quezon City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino (who was closely identified with former Senate President Salonga) had been blocked because they had “incurred the ire of the powers that be,” the truth, which could very easily have been verified, being that a pending administrative case against Judge Asuncion had stood in the way of his nomination, and since Mr. Victorino had been sponsored or recommended by then Senate President Salonga himself, the fact that he was not nominated can hardly be attributed to the hostility or
SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado law, not the nephew, of Justice Relova. Had he . bothered to make any further verification, he would have learned that at all sessions of the Council where the nomination of Judge Joselitode la Rosa was considered, Justice Relova not only declined to take part in the deliberations, but actually left the conference room; and he would also have learned that Judge Rosalio de la Rosa had never been nominated—indeed, to this date, he has not been nominated—to the Court of Appeals.
. Council
335 VOL. 243, APRIL 6, 1995 In Re: Emil P. Jurado
335
(d)He has recklessly slandered the Judicial and Bar by charging that it has improperly made
24
.
opposition of persons in positions of power or influence.
_______________
.
21 Said Sec. 15, par IV, supersedes the provision in Circular No. 7 that the Executive Judge “shall have no authority to act on any incidental or interlocutory matter in any case not yet assigned to any branch by raffle.” 336 336 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado
(f)Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about Executive Judge Rosalio de la Rosa of the Manila Regional Trial Court as:
.
(1)having been nominated to the Court of Appeals by the Judicial and Bar Council chiefly, if not only, by reason of being the nephew of Justice Relova and the cousin of Chief Justice Narvasa, the truth, as already pointed out, being that Judge Rosalio de la Rosa had never been thus nominated to the Court of Appeals, the nominee having been Judge Joselito de la Rosa, the son-in-law (not nephew) of Justice Relova; and
.
(2)having discarded the rule that cases seeking provisional remedies should be raffled off to the judges (column of January 28, 1993) and adopted a system of farming out applications for temporary restraining orders, etc., among all the branches of the court; here again, Jurado is shown to have written without thinking, and made statements without verifying the accuracy of his information or seeking the views of the subject of his pejorative statements; the merest inquiry would have revealed to him that while Circular No. 7 dated September 23, 1974 requires that no case may be assigned in multi-sala courts without raffle (for purposes of disposition on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV),21 empowers Executive Judges to act on all applications for provisional remedies (attachments, injunctions, or temporary restraining orders, receiverships, etc.), or on interlocutory matters before raffle, in order to “balance the workload among courts and judges, (Sec. 1, par. 2, id .), and exercise such other powers
.
and prerogatives as may in his judgment be necessary or incidental to the performance of his functions as a Court Administrator” (Sec. 7, par. 1, id .)—these provisions being broad enough, not only to authorize unilateral action by the Executive Judge himself on provisional remedies and interlocutory matters even prior to raffle of the main case, but also to delegate the authority to act thereon to other judges. Jurado does not explain why: (1) he made no effort to verify the state of the rules on the matter; (2) he precipitately assumed that the views of Judge Teresita Dy-Liaco Flores, whose complaint on the subject he claims he merely summarized, were necessarily correct and the acts of Judge de la Rosa necessarily wrong or improper; and (3) he did not try to get Judge de la Rosa’s side at all. Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of their objective truth; the abdication of the journalist’s duty to report and interpret the news with scrupulous fairness; and the breach of the law’s injunction that a person act with justice, give everyone his due and observe honesty and good faith both in the exercise of his rights and in the performance of his duties.
.
7. Jurado’s Proffered Excuses and Defenses
25
The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously unavailing in light of the basic postulates and the established axioms or norms for the proper exercise of press freedom earlier set forth in this opinion.22 Jurado next puts in issue this Court’s power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar principle reiterated inter aliain Zaldivar v. Gonzalez :23 _______________ 22 Subhead “1. Basic Postulates,” at pages 1 and 2; and sub -head “ 5.Norms for Proper Exercise of Press Freedom,” at pp. 12 to 15, supra. 23 166 SCRA 316 (1988). 337 VOL. 243, APRIL 6, 1995 337 In Re: Emil P. Jurado “** (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court ( In re Kelly, 35 Phil. 944[1916]; In re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 [1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is ‘necessary for its own protection against improper interference with the due administration of justice,’ ‘(i)t is not dependent upon the complaint of any of the parties li tigant’” (Halili v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630 [1946]).” Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even when made
after the trial stage or after the end of the proceedings. The original doctrine laid down in People vs. Alarcon24—that there is no contempt if there is no pending case —has been abandoned in subsequent rulings of this Court which have since adopted the Moran dissent therein,25viz .: “Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal contempt which is summarily punishable by courts. This is the rule announced in the cases relied upon by the majority. A publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. In the language of the majority, what is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of _______________ 24 69 Phil. 265 (1939). 25 Id ., at p. 273, 274-275; SEE In re Brillantes, 42 O.G. No. 1, p. 59, and In re Almacen, 31 SCRA 595-596. 338 338 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in them. In the first, there is no contempt where there is no action pending, as there is no decision which might in any way be influenced by the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought to be protected is the court itself and its dignity. (12 Am. Jur. pp. 416417.) Courts would lose their utility if public confidence in them is destroyed.”
26
The foregoing disposes of Jurado’s other contention that the present administrative matter is not a citation for direct contempt, there being no pending case or proceeding out of which a charge of direct contempt against him may arise; this, even without regard to the fact that the statements made by him about sojourn in Hongkong of six Justices of the Supreme Court were clearly in relation to a case involving two (2) public utility companies, then pending in this Court.26 His theory that there is no formal charge against him is specious. His published statements about that alleged trip are branded as false in no uncertain terms by the sworn statement and letter of VicePresident Vicente R. Samson of the Philippine Long Distance Telephone Company which:
.
(a)“emphatically and categorically” deny that PLDT had made any arrangements with any travel agency, or with the two travel agencies it patronized or retained, or paid anything, on account of such alleged trip;
.
(b)positively affirm (i) that PLDT was “not even aware that any of the justices or their families ** (had) made the trip referred to in the Jurado column,” and (ii) that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to ** (said Mr. Samson) or any other responsible officer of PLDT about the matter **”; and
.
(c)beseech the Court to “take such action (on the matter) as may be appropriate.” _______________ 26 The case is, as indicated early in this opinion (Sub-Head No. 3, pp. 5-6), G.R. No. 94374 (Philippine Long Distance Telephone Company v. National Telecommunications Commission and Eastern Telephone Philippines, Inc. [ETPI]), decided by the Court En Banc on August 27, 1992; and the signed Resolution disposing of the respondents’ motion for the reconsideration of said decision of August 27, 1992, was promulgated on February 21, 1995.
339 VOL. 243, APRIL 6, 1995 339 In Re: Emil P. Jurado As already stated, the Court, in its Resolution of February 16, 1993: (a) ordered the subject of Samson’s letter and affidavit docketed as an official Court proceeding to determine the truth of Jurado’s allegations about it; and (b) directed also that Jurado be furnished copies of Atty. William Veto’s affidavit on the luncheon party ho sted by him (which Jurado reported as one given by Equitable Bank) and that Jurado file comment on said affidavits as well as allegations in specified columns of his. Jurado was also furnished copies of the affidavits later submitted by the two travel agencies mentioned in Samson’s statement, and was required to comment thereon. It was thus made clear to him that he was being called to account for his published statements about the matters referred to, and that action would be taken thereon against him as “may be appropriate.” That that was in fact how he understood it is evident from his submitted defenses, denying or negativing liability for contempt, direct or indirect. Indeed, as a journalist of no little experience and a lawyer to boot, he cannot credibly claim an inability to understand the nature and import of the present proceedings. Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a journalist, and asks why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated differently than his other colleagues in media who were only asked to explain their reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that upon all that has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation, which tend to put it in disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner. Jurado has not been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn statements branding his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their publication.
27
Jurado would have the Court clarify in what capacity — whether as a journalist, or as a member of the bar—has been cited in theseproceedings. Thereby he resurrects the issue he once 340 340 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado raised in a similar earlier proceeding: that he is being called to account as a lawyer for his statements as a journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions as journalist who has misused and abused press freedom to put the judiciary in clear and present danger of disrepute and of public odium and opprobrium, to the detriment and prejudice of the administration of justice. That he is at the same time a member of the bar has nothing to do with the setting in of those sanctions, although it may aggravate liability. At any rate, what was said about the matter in that earlier case is equally cogent here: “Respondent expresses perplexity at being called to account for the publications in question in his capacity as a member of the bar, not as a journalist. The distinction is meaningless, since as the matter stands, he has failed to justify his actuations in either capacity, and there is no question of the Court’s authority to call him to task either as a newsman or as a lawyer. What respondent proposes is that in considering his actions, the Court judge them only as those of a member of the press and disregard the fact that he is also a lawyer. But his actions cannot be put into such neat compartments. In the natural order of things, a person’s acts are determined by, and r eflect, the sum total of his knowledge, training and experience. In the case of respondent in particular, the Court will take judicial notice of the frequent appearance in his regular columns of comments and observations utilizing legal language and argument, bearing witness to the fact that in pursuing his craft as a journalist he calls upon his knowledge as a lawyer to help inform and influence his readers and enhance his credibility. Even absent this circumstance, respondent cannot honestly assert that in exercising his profession as a journalist he does not somehow, consciously or unconsciously, draw upon his legal knowledge and training. It is thus not realistic, nor perhaps
even possible, to come to any fair, informed and intelligent judgment of respondent’s actuations by divorcing from consideration the fact that he is a lawyer as well as a newspaperman, even supposing, which is not the case—that he may thereby be found without accountability in this matter. To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his actions be judged solely as those of a newspaperman urburdened by the duties and responsibilities pecu _______________ 27 Adm. Matter No. 90-5-2373, In re: Atty. Emiliano P. Jurado, Jr., a.k.a. Emil Jurado, Extended Resolution, July 12, 1990. 341 VOL. 243, APRIL 6, 1995 341 In Re: Emil P. Jurado liar to the law profession of which he is also a member.”
.
8.The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to purge Jurado’s conduct of any taint of contempt must now be briefly addressed.
.
a. Apparent Misapprehension of Antecedents and
Issue Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the proceedings at bar but also the basic issues involved. The dissents appear to be of the view, for instance, that it was chiefly Jurado’s failure to appear before the Ad Hoc Committee in response to two (2) letters of invitation issued to him, that compelled the Court to order the matter to be docketed on February 16, 1993 and to require respondent Jurado to file his Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of this opinion, supra,
28
the direct cause of these proceedings was not Jurado’s refusal to appear and give evidence before the Ad Hoc Committee. The direct cause was the letters of PLDT and Atty. William Veto, supported by affidavits, denouncing certain of his stories as false, 28 with the former praying that the Court take such action as may be appropriate. And it was precisely “the matter dealt with in the letter and affidavit of the PLDT” that this Court ordered to “be duly DOCKETED, and hereafter considered and acted upon as an official Court proceeding,” this, by Resolution dated February 16, 1993; the Court also requiring, in the same Resolution, “that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado **,” and that Jurado _______________ 28 Specially, that concerning an alleged Hongkong vacation of six (6) unnamed Justices of the Supreme Court and their families which had been paid for by a public utility firm, and arranged by a travel agency patronized by the latter; and that relative to an alleged party of a bank for certain unnamed Justices and judges (SEE Sub-Head 3, a and b). 342 342 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado should comment thereon “as well as (on) the allegations made by him in his columns, herein specified” — because of explicit claims, and indications of the falsity or inaccuracy thereof. There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise: (1) the right of newsmen to refuse subpoenas, summons, or ‘invitations’ to appear in administrative investigations,” and (2) their right “not to reveal confidential sources of information under R.A. No. 53, as amended”— which are not really involved here—in respect of which it is theorized that the majority opinion will have an inhibiting effect on newsmen’s confidential sources of information, and thereby abridges the freedom of the press.
. (1) No Summons Ever Issued to Jurado
or
Subpoena
The fact is that no summons or subpoena was ever issued to Jurado by the Ad HocCommittee; nor was the issuance of any such or similar processes, or any punitive measures for disobedience thereto, intended or even contemplated. Like most witnesses who gave evidence before the Committee, Jurado was merely invited to appear before it to give information in aid of its assigned task of ascertaining the truth concerning persistent rumors and reports about corruption in the judiciary. When he declined to accept the invitations, the Ad Hoc Committee took no action save to inform the Court thereof; and the Court itself also took no action. There is thus absolutely no occasion to ascribe to that investigation and the invitation to appear thereat a “chilling effect” on the by and large “hard - boiled” and self assured members of the media fraternity. If at all, the patience and forbearance of the Court, despite the indifference of some of its invitees and projected witnesses, appear to have generated an attitude on their part bordering on defiant insolence.
. (2) No Blanket Excuse From Responding to Subpoena
Under
RA
53
Even assuming that the facts were as represented in the separate opinion, i.e., that subpoenae had in fact been issued to and served on Jurado, his unexplained failure to obey the same 343 VOL. 243, APRIL 6, 1995 343 In Re: Emil P. Jurado would prima facie constitute constructive contempt under Section 3, Rule 71 of the Rules of Court. It should be obvious that a journalist may not refuse to appear at all as required by a subpoena on the bare plea that under R.A. No. 53, he may not be compelled to disclose the source of his information. For until he knows what questions will be put to him as witness—for which his presence has been compelled— the relevance of R.A. No. 53 cannot be ascertained. His duty is clear.
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He must obey the subpoena. He must appear at the appointed place, date and hour, ready to answer questions, and he may invoke the protection of the statute only at the appropriate time.
.
b.The Actual Issue
The issue therefore had nothing to do with any failure of Jurado’s to obey a subpoena,none ever having been issued to him, and the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set out in the opening sentence of this opinion, essentially concerns “ (l)iability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges .” Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise honest and reasonable efforts to determine the truth of defamatory statements before publishing them. He is being meted the punishment appropriate to the publication of stories shown to be false and defamatory of the judiciary —stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable, to substantiate.
. c. RA 53 Confers No Immunity from Liability for False or Defamatory Publications This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential; that he cannot be compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands 344 344 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado such revelation. But it does hold that he cannot invoke such right as a shield against liability for printing stories that are untrue and
derogatory of the courts, or others. The ruling, in other words, is that when called to account for publications denounced as inaccurate and misleading, the journalist has the option (a) to demonstrate their truthfulness or accuracy even if in the process he disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In the latter event, however, he must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which he is unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose sources is “without pre judice to ** liability under civil and criminal laws.” RA No. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that the publication of any news report or information which was “related in confidence” to the journalist is not actionable; such circumstance (of confidentiality) does not purge the publication of its character as defamatory, if indeed it be such, and actionable on that ground. All it does is give the journalist the right to refuse (or not to be compelled) to reveal the source of any news report published by him which was revealed to him in confidence. A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y received a bribe of P1M each for their votes in such and such a case, or that a certain Judge maintains a mistress, and when called to account for such statements, absolve himself by claiming immunity under R.A. 53, or invoking press freedom.
.
d. A Word about “Group Libel”
There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of unscrupulous newsmen who can malign any number of anonymous members of a common profession, calling or persuasion, thereby putting an entire institution—like the judiciary in this case—in peril of public contumely and mistrust without serious risk of being sued for defamation. The preceding discussions have revealed Jurado’s predilection for, if not his normal practice of,
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345
and if thereafter called to account therefor, present such evidence VOL. 243, APRIL 6, 1995 345 and in the process afford the party adversely affected thereby opportunity to dispute the information or show it to be false. In Re: Emil P. Jurado 346 refusing to specifically identify or render identifiable the persons he 346 SUPREME COURT REPORTS ANNOTATED maligns. Thus, he speaks of the “Magnificent Seven,” by merely In Re: Emil P. Jurado referring to undisclosed regional trial court judges in Makati; the “Magnificent Seven” in the Supreme Court, as some undesignated If the information is not verifiable, and it is derogatory of any third justices who supposedly vote as one; the “Dirty Dozen,” as party, then it ought not to be published for obvious reasons. It would unidentified trial judges in Makati and three other cities. He adverts be unfair to the subject of the report, who would be without means of to an anonymous group of justices and judges for whom a bank refuting the imputations against him. And it would afford an allegedly hosted a party; and six unnamed justices of this Court who unscrupulous journalist a ready device by which to smear third reportedly spent a prepaid vacation in Hong Kong with their families. parties without the obligation to substantiate his imputations by This resort to generalities and ambiguities is an old and familiar but merely claiming that the information had been given to him “in reprehensible expedient of newsmongers to avoid criminal sanctions confidence.” since the American doctrine of group libel is of restricted application It is suggested that there is another face to the privileged character of in this jurisdiction. For want of a definitely identified or satisfactorily a journalist’s source of information than merely the protection of the identifiable victim, there is generally no actionable libel, but such a journalist, and that it is intended to protect also the source itself. craven publication inevitably succeeds in putting all the members of What clearly is implied is that journalist may not reveal his source the judiciary thus all together referred to under a cloud of suspicion. without the latter’s clearance or consent. This totally overlooks the A veteran journalist and lawyer of long standing that he is, Jurado fact that the object of a derogatory publication has at least an equal could not have been unaware of the foregoing realities and right to know the source thereof and, if indeed traduced, to the consequences. opportunity of obtaining just satisfaction from the traducer.
.
e. Substantiation of News Report Not Inconsistent with RA 53 It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him would necessarily negate or dilute his right to refuse disclosure of its source. The argument will not stand scrutiny. A journalist’s “source” either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or immunity whatsoever. If the “source” actually exists, the information furnished is either capable of independent substantiation, or it is not. If the first, the journalist’s duty is clear: ascertain, if not obtain, the evidence by which the information may be verified beforepublishing the same;
.
9. Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and very pertinent, question of whether a journalist may put in print unverified information derogatory of the courts and judges and yet remain immune from liability for contempt for refusing, when called upon, to demonstrate their truth on the ground of press freedom or by simply claiming that he need not do so since (or if) it would compel him to disclose the identity of his source or sources. The question, too, is whether or not we are prepared to say that a journalist’s obligation to protect his sources of information transcends, and is greater than, his duty to the truth; and that, accordingly, he has no obligation whatsoever to verify, or
31
exercisebona fide efforts to verify, the information he is given or v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They obtain the side of the party adversely affected before he publishes the belong to that category of utterances which ‘are no essential part of same. any exposition of ideas, and are of such slight social value as a step to True, the pre-eminent role of a free press in keeping freedom alive the truth that any benefit that may be derived from them is clearly and democracy in full bloom cannot be overemphasized. But it is outweighed by the social interest in order and morality.’ Chaplinsky v. debatable if that role is well and truly filled by a press let loose to New Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766 print what it will, without reasonable restraints designed (1942).” 347 VOL. 243, APRIL 6, 1995 347 _______________ In Re: Emil P. Jurado 29 In Gertz v. Robert Welch., 418 U.S. 323, 340. to assure the truth and accuracy of what is published. The value of 348 information to a free society is in direct proportion to the truth it contains. That value reduces to little or nothing when it is no longer 348 SUPREME COURT REPORTS ANNOTATED possible for the public to distinguish between truth and falsehood in In Re: Emil P. Jurado news reports, and the courts are denied the mechanisms by which to “The use of calculated falsehood,” it was observed in another make reasonably sure that only the truth reaches print. case,30 “would put a different cast on the constitution al question. Although honest utterances, even if inaccurate, may further the . a. No Constitutional Protection for Deliberately fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, False or Recklessly Inaccurate Reports should enjoy a like immunity. ** ** (T)he knowingly false statement and the false statement made with reckless disregard of the truth, do It is worth stressing that false reports about a public official or other not enjoy constitutional protection.” person are not shielded from sanction by the cardinal right to free Similarly, in a 1969 case concerning a patently false accusation made speech enshrined in the Constitution. Even the most liberal view of against a public employee avowedly in fulfillme nt of a “legal, moral, free speech has never countenanced the publication of falsehoods, or social duty,”31 this Court, through the late Chief Justice Roberto specially the persistent and unmitigated dissemination of patent lies. Concepcion, ruled that the guaranty of free speech cannot be The U.S. Supreme Court,29 while asserting that “(u)nder the First considered as according protection to the disclosure of lies, gossip or Amendment there is no such thing as a false idea,” and that rumor, viz .: “(h)owever pernicious an opinion may seem, we depend for its “ ** Defendant’s civil duty was to help the Government clean house correction not on the conscience of judges and juries but on the and weed out dishonest, unfit or disloyal officers and employees competition of other ideas” (citing a passage from the first Inaugural thereof, where there is reasonable ground to believe that they fall Address of Thomas Jefferson), nonetheless made the firm under this category. He had no legal right, much less duty, to gossip, pronouncement that “there is no constitutional value in false or foster the circulation of rumors, or jump at conclusions and more statements of fact,” and “the erroneous statement of fact is not so if they are gratuitous or groundless. Otherwise, the freedom of worthy of constitutional protection (although) ** nevertheless speech, which is guaranteed with a view to strengthening our inevitable in free debate.” “Neither the intentional lie nor the careless democratic institutions and promoting the general welfare, would be error,” it said, “materially advances society’s interest in ‘unhibited, a convenient excuse to engage in the vituperation of individuals, for robust, and wide-open’ debate on public issues. New York Times Co.
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the attainment of private, selfish and vindictive ends, thereby hampering the operation of the Government with administrative investigations of charges preferred without any color or appearance of truth and with no other probable effect than the harassment of the officer or employee concerned, to the detriment of public service and public order.”
.
b.No “Chilling Effect”
The fear expressed, and earlier adverted to, that the principles here affirmed would have a “chilling effect” on media professionals, seems largely unfounded and should be inconsequential to the greater number of journalists in this country who, by and large, out of considerations of truth, accuracy, and fair play, have commendably refrained from ventilating what would otherwise _______________ 30 Garrison v. Louisiana, 379 U.S. 64, 75. 31 Orfanel v. People, 30 SCRA 819, 828-829. 349 VOL. 243, APRIL 6, 1995 In Re: Emil P. Jurado be “sensational” or “high- visibility” stories. In merely seeking to infuse and perpetuate the same attitude and sense of responsibility in all journalists, i.e., that there is a need to check out the truth and correctness of information before publishing it, or that, on the other hand, recklessness and crass sensationalism should be eschewed, this decision, surely, cannot have such “chilling effect,” and no apprehension that it would deter the determination of truth or the public exposure of wrong can reasonably be entertained. The people’s right to discover the truth is not advanced by unbridled license in reportage that would find favor only with extremist liberalism. If it has done nothing else, this case has made clear the compelling necessity of the guidelines and parameters elsewhere herein laid down. They are eminently reasonable, and no responsible
journalist should have cause to complain of difficulty in their observance.
.
10. Afterword
It seems fitting to close this opinion with the words of Chief Justice Moran, whose pronouncements have already been earlier quoted,32 and are as germane today as when they were first written more than fifty (50) years ago.33 “It may be said that respect to courts cannot be compelled and that public confidence should be a tribute to judicial worth, virtue and intelligence. But compelling respect to courts is one thing and denying the courts the power to vindicate themselves when outraged is another. I know of no principle of law that authorizes with impunity a discontended citizen to unleash, by newspaper publications, the avalanche of his wrath and venom upon courts and judges. If he believes that a judge is corrupt and that justice has somewhere been perverted, law and order require that he follow the processes provided by the Constitution and the statutes by instituting the corresponding proceedings for impeachment or otherwise. **. “***** 349 “It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This suggestion has, however, no _______________ 32 SEE footnote 24, supra. 33 69 Phil. 265, 277, 279. 350 350 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado rational basis in principle. In the first place, the outrage is not directed to the judge as a private individual but to the judge as such or to the court as an organ of the administration of justice. In the second place, public interests will gravely suffer where the judge, as such, will, from time to time, be pulled down and disrobed of his judicial authority to face his assailant on equal grounds and
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prosecute cases in his behalf as a private individual. The same Vitug, J ., No part; respondent was a former partner in a law firm. reasons of public policy which exempt a judge from civil liability in Kapunan, J ., I take no part. Respondent is related to me by the exercise of his judicial functions, most fundamental of which is affinity. the policy to confine his time exclusively to the discharge of his public duties, applies here with equal, if not superior, force DISSENTING OPINION (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N.E. MELO, J .: 194). **.” Jurado’s actuations, in the context in which they were done, In making a choice between the preservation of liberties and freedom, demonstrate gross irresponsibility, and indifference to factual on one hand, and the attainment of a better—ordered society, on the accuracy and the injury that he might cause to the name and other, men have not stopped debating. The balance, the point of the reputation of those of whom he wrote. They constitute contempt of weighing scale, has moved hither and thither depending on the needs court, directly tending as they do to degrade or abase the of the times and on the kind of government involved. But in administration of justice and the judges engaged in that function. By democratic governments, there must at all times be due regard for doing them, he has placed himself beyond the circle of reputable, the preservation of constitutional rights even to the extent, at times, decent and responsible journalists who live by their Code or the of seemingly sacrificing, as in the case at hand, accurate and truthful “Golden Rule” and who strive at all times to maintain the prestige media comment. and nobility of their calling. To be sure, fair, accurate, truthful reporting by the press is the Clearly unrepentant, exhibiting no remorse for the acts and conduct hallmark and badge of a healthy and self-assured society. But such detailed here, Jurado has maintained a defiant stance. “This is a fight ideal must not be purchased or achieved at the cost of press freedom I will not run from,” he wrote in his column of March 21, 1993; and itself, but rather by caring for and nurturing, cultivating, and again, “I will not run away from a good fight,” in his column of March promoting the growth of said freedom, impressing upon its 23, 1993. Such an attitude discourages leniency, and leaves no choice practitioners due regard for the truth and the entitlement of the save the application of sanctions appropriate to the offense. public they serve to accurate reporting instead of the publication or WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado airing of private biases and jaundiced views. guilty of contempt of court and in accordance with Section 6, Rule 71 It is thus even as I am personally disturbed by fallacious, specious, of the Rules of Court, hereby sentences him to pay a fine of one and at times downright false and deceitful reporting and comments, thousand pesos (P1,000.00). meant only to promote private and selfish interests, I must extend IT IS SO ORDERED. my concurrence to the well-written opinion of Justice Puno. For, as Feliciano, Bidin, Regalado, Davide, was said of old, when one rows through a sea of conflict between Jr., Romero, Bellosillo, Quiason, Mendozaand Francisco, JJ ., concur. restraint and freedom, one should hold both oars steadily, but always Padilla, J ., I join Mr. Justice Puno in his dissenting opinion. with the oar of freedom in the stronger hand, lest an errant course be 351 VOL. 243, APRIL 6, 1995 351 laid. 352 In Re: Emil P. Jurado 352 SUPREME COURT REPORTS ANNOTATED Melo, J ., Please see dissenting opinion. In Re: Emil P. Jurado Puno, J ., Please see dissenting opinion.
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DISSENTING OPINION PUNO, J .: The case at bench resolves several issues of critical importance to freedom of speech and of the press, thus: (1) the right of newsmen to refuse subpoenas, summons, or “invitations” to appear in administrative investigations; (2) the right of newsmen not to reveal confidential sources of information under R.A. No. 53, as amended; and (3) the test to be followed before a false or slanted report by a journalist can be adjudged as constitutive of contempt of court. It is my humble submission that the majority opinion, even while heavily laden with wisdom, has too much of an inhibiting effect on our newsmen’s pen as to abridge their freedom of speech and of the press. I, therefore, dissent. The facts are amply stated in the majority opinion. In 1992-93, unsavory news and commentaries about malpractices in the judiciary, some of them outrightly vicious, appeared in the print and broadcast media. In reaction, Chief Justice Andres R. Narvasa issued Administrative Order No. 11-93, dated January 25, 1993, “Cre ating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary.” Its text reads: “WHEREAS, the Court’s attention has been drawn to the many and persistent rumors and unverified reports respecting corruption in the judiciary, said rumors and reports not only having been mentioned by media and in anonymous communications, but having also been adverted to by certain government officials and civic leaders. NOW, THEREFORE, by authority of the Court, an ad hoc committee is hereby constituted composed of Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain the truth respecting said reports and statements, and to this end, forthwith interview at closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the matterand who may be appealed to to share knowledge with the Court , and otherwise gather such evidence as may be available. The Committee is hereby authorized to use such facilities and
personnel of the Court as may be necessary or convenient in the fulfillment of its assigned mission, and shall submit its report to the Court within thirty (30)days.” (Italics supplied) 353 VOL. 243, APRIL 6, 1995 353 In Re: Emil P. Jurado The membership of the Committee was immediately constituted.1 From February 2, 1993 to April 16, 1993, the Committee held twenty-four (24) closed-door sessions and interviewed seventyone (71) witnesses who appeared to have some knowledge of the subject of inquiry.2 Among the persons invited by the Committee to appear was respondent Jurado. His first invitation was to appear on February 4, 1993 “to give the Committee information that will assist it in its task,i.e., to definitely and accurately determine the facts as regards the published rumors and reports of corruption in the judiciary.” Respondent Jurado failed to honor the invitation. On February 5, 1993, the Committee reiterated its invitation, couched in the following language: “x x x x x x x x x “It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session of February 4, 1993. All indications are that you are the person with the most knowledge about corruption in the judiciary and hence, appear to be best positioned to assist the Ad Hoc Committee in its function of obtaining evidence, or leads, on the matter. You have, I believe, expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we believe you will want to help the Court to do precisely that, by furnishing the Committee with competent evidence, testimonial or otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt realize, being yourself a lawyer. We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to maintain and enforce order in its proceedings, and to compel
35
obedience to its processes, it is not an adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions, on the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court itself, in which it is lodged by the Constitution and the _______________ 1 Named alternate members were Associate Justices Hilario G. Davide, Jr., Josue N. Bellosillo, and Irene R. Cortes (retired). 2 Report and Recommendations of the Ad Hoc Committee created under Adm. Order No. 11-93, dated May 7, 1993, pp. 1-2. 354 354 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado laws. Thus, at the conclusion of its evidence-gathering mission, the Ad Hoc Committee will submit its report and recommendations to the Court which will then take such action as it deems appropriate. The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice Hilario G. Davide, Jr., will preside as Chairman at these hearings since I will be unable to do so in view of earlier commitments. We reiterate our invitation that you come before the Committee, and you may opt to appear either on the 11th or 12th of February, 1993, at 2 o’clock in the afternoon.” (Italics supplied) Again, respondent Jurado did not appear in the scheduled investigations. The Court ordered the matter to be docketed on February 16, 1993 and respondent was asked to file his Comment on the PLDT letter and affidavit of Mr. Vicente Samson and the affidavit of Atty. William Veto, the contents of which are related in the majority opinion. Respondent Jurado submitted his Comment on March 1, 1993. By then, the Court has also received the affidavits of Mr. Ermin Garcia of the City World Travel Mart Corporation and of Mrs. Marissa de la Paz of Philway Travel Corporation traversing the column of February 8, 1993 of the respondent. On Orders of the Court, the respondent then submitted a Supplemental Comment with Request for
Clarification on March 15, 1993. Among other defenses, respondent invoked R.A. No. 53,3 as amended by R.A. No. 1477, which reads: “AN ACT AMENDING SECTION ONE OF REPUBLIC ACT NUMBERED FIFTY-THREE, ENTITLED ‘AN ACT TO EXEMPT THE PUBLISHER, EDITOR, COLUMNIST OR REPORTER OF ANY PUBLICATION FROM REVEALING THE SOURCE OF PUBLISHED NEWS OR INFORMATION OBTAINED IN CONFI-DENCE’ Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled : SECTION1. Section one of Republic Act Numbered Fifty-three is amended to read as follows: SECTION1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited _______________ 3 Enacted on October 5, 1946. 355 VOL. 243, APRIL 6, 1995 355 In Re: Emil P. Jurado reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any newsreport or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the Court or a House or committee of Congress finds that such revelation is demanded by the security of the State. SECTION2. This Act shall take effect upon its approval. Approved, June 15, 1956.” (Italics supplied) Upon these facts, the majority would hold respondent guilty of contempt of court. In adjudging respondent in contempt of court, the majority attempted to establish an equilibrium between the importance of a free press and the need to maintain the integrity and orderly functioning of the administration of justice, the civil law duty to “act with justice, give everyone his due, and observe honesty and good faith,” and the right to private honor and reputation. The majority tilted the balance against freedom of the press and respondent
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Jurado after finding that some of his columns were either false or slanted as he made no effort to verify them before their publication. How to strike a balance that will accommodate equally compelling yet competing State interests has divided men of stratospheric intellect. Until the last decibel of time, and while man continues to be bereft of infallibility, the best of minds will continue with their search for the elusive variables that will correctly tilt the balance between press freedom and other freedoms. Thus, with high respect to my learned colleagues in the majority, I beg to differ with their conclusion on where to fix the elusive balance in the case at bench. A brief revisit of the history of the struggle to protect freedom of the press ought to be enlightening. It will remind us that freedom of speech and freedom of the press 4 are preferred rights5 _______________ 4 Sec. 4, Article III of the Constitution provides: “No law shall be passed abridging the freedom of speech, of expression, or of the press ... .” 5 Butsee Justice Frankfurter’s concurring opinion in Kovacs v. Cooper, 336 US 77, 90-99 [1949]. 356 356 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado for they are indispensable preconditions for the exercise of other freedoms.6 Their status as the cornerstone of our liberties followed the shift of sovereignty from monarchs to the masses —the people.7 For the people to be truly sovereign, they must be capable of rendering enlightened judgments and they cannot acquire this capability unless they have an unclogged access to information, the main pipeline of which is the press. Early enough, Madison had the prescience to warn that “a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both.” 8 The history of press freedom will also reveal that while its importance has been given lip service, its unabridged exercise was not won without a costly struggle. Ironically, the attempts to restrict
the newsmen’s pen came from government itself. The attempts were disguised in different insidious forms. 9 They came as sedition laws which sent newsmen behind bars. They came as tax laws which impoverished newspaper publishers. Through long, difficult years, the press survived these assaults. Nonetheless, the struggle to preserve press freedom is distinct for it is a story with a first but without a final chapter. In the decade of the 60’s and onwards, a new weapon against press freedom was unsheathed by government. It was the sword of subpoena. In Congress as in the courts, it was wielded to pry open newsmen’s secret sources of information often derogatory to government. The unbridled use of the subpoena had its silencing effects on the exercise of press freedom. Common law denied newsmen the right to refuse to testify concerning information received in confidence.10 The press has to go to the legislature for protection. The protection came to be known as shield statutes _______________ 6 Publishing Co. v. Butts, 388 US 130, 145 [1967]. 7 Sec. 1, Article II of the Constitution pr ovides: “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” 8 6 Writings of James Madison 397 (Hunt ed. 1906). 9 L. Levy, Legacy of Suppression, [1960]. 10 8 Annot. 7 ALR 3rd 591, 592-596 [1966] J. Wigmore, Evidence, S. 2286 (McNaughton ed., 1961); Garland v. Torre, 259 F2d 545 (2nd Cir., 1958); People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 1991 N.E. 415 (1936). 357 VOL. 243, APRIL 6, 1995 357 In Re: Emil P. Jurado and their scope varied. In the United States, they were of two (2) types: (1) laws that shield the identities of newsmen’s informants from disclosure;11 and (2) laws that shield not only the identities of news sources but also the content of the communicationagainst disclosure.12 Test cases were also filed in courts seeking a ruling that
37
a newsman’s right to gather news is constitutionally protected, and hence, cannot be impaired by subpoenas forcing disclosure of the identities of their sources of information. 13 To date, the American case law on the matter has yet to jell. In the Philippines, the shield law is provided by Republic Act No. 1477, approved on June 15, 1956 which prohibits revelation of “thesource of any news-report or information ... related in confidence ... unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State.” R.A. No. 1477 amended R.A. No. 53 by changing the phrase “interest of the State” to “security of the State.” The change limited the right of the State to share with newsmen their confidential sources of information. Prescinding from these premises, let me now slide to the constitutional balancing made by the majority. I wholeheartedly agree that except for a more overriding consideration, the Court should uphold the importance of an orderly administration of justice. It appears that respondent’s reliance on his constitutional right to freedom of speech and of the press failed to impress the majority as an overriding consideration. Among the reasons that obviously swayed the majority in submerging the significance of freedom of speech and of the press below that of an orderly administration of justice were: failure of respondent to obey the invitation to appear made by the AdHocCommittee, his refusal to reveal the sources of his information, and the falsity and slants of his columns. In registering this dissent, I wish to address these reasons and I respectfully posit the following _______________ 11 E.g. Laws of Alabama, Arizona, California, Indiana, Kentucky, Maryland, Montana, New Jersey, and Ohio. 12 E.g. Laws of Michigan, New York, and Pennsylvania. 13 Garland v. Torre, 259 F2d 545 (2d Cir); In re Goodfader, 45 Hawaii 317, 367 P2d 472 (1961); State v. Buchanan, 205 Ore 244, 436 P2d 729 (1968). 358
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SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado
postulates: First . It should be stressed that respondent Jurado was initially invited to appear before the Ad HocCommittee tasked to investigate Reports of Corruption in the Judiciary. The Ad Hoc Committee is only a fact-finding body as its ordained duty is “to ascertain the truth” respe cting reports on corruption in the judiciary. As an administrative fact-finding body, its power to compel newsmen to appear and disclose their secret sources of information is lesscompared with the same power of Congress while making laws or the power of courts when litigating actual controversies. Jurisprudence holds that the power to compel testimony inheres in the power to legislate for “a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” 14 Case law similarly holds that courts can compel newsmen to testify where it is necessary to avoid miscarriage of justice. 15 The majority should not take to task the respondent for his failure to appear before the Ad Hoc Committee. His failure to honor its invitation had only a slight adverse effect on the work of the Committee. It does not justify imposing on respondent the severe order of contempt of court. The majority, however, holds that the respondent was not cited for contempt for his non-appearance before the Ad Hoc Committee where he did not explain his other writings in the Manila Standard but for his falsereport on the alleged Hongkong trip of some justices and his slanted report on the birthday party of Atty. Veto attended by some appellate justices. A close look at the flow and totality of the proceedings against respondent will, however, belie the stance of the majority. In his March 1, 1993 Comment, respondent explained the bases of all his reports regarding corruption in the judiciary, which among others, assailed Judge Rosalio de la Rosa, Executive Judge of Manila, Makati’s Magnificent Seven, the Magnificent Se ven in the Supreme Court, the JBC, etc. The majority did not consider this explanation as immaterial on the ground that he was not being asked to account for said reports. On the contrary, the
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compromise its role as critic of government. Again, it should be stressed that the judiciary is not without resources to investigate and reform itself. It can purge its ranks without compelling the 14 McGrain v. Daugherty, 273 US 135, 175 (1927). involvement of the press. 15 See Garland v. Torre, supra, footnote 13. Third . The protection of R.A. No. 53, as amended by R.A. No. 1477, to 359 VOL. 243, APRIL 6, 1995 359 newsmen should not be diminished as much as possible. Under this law, there is only one but one clear ground which can force a In Re: Emil P. Jurado newsman to reveal the source of his confidential explanation of the respondent was minutely dissected in the majority 360 opinion, and thereafter, it was condemned as a “litany of falsehoods.” 360 SUPREME COURT REPORTS ANNOTATED Indeed, no less than four (4) pages of the majority opinion written in In Re: Emil P. Jurado single space were devoted to the discussion of these writings of the information— when demanded by the security of the State. It is respondent. instructive to remember the case of In re: Angel J. Parazo,16 where Neither does it materially matter that no summons or subpoena was the Court adjudged newsman Parazoin contempt of court for issued to the respondent by the Ad Hoc Committee. According to the refusing to divulge the source of his story regarding leakage of majority, only an “invitation” to appear was extended to the questions in some subjects in the 1948 Bar Examinations. It was respondent. This thin semantical distinction, however, cannot deflate contended by Parazo that under R.A. No. 53, he could only be the fact that an “invitation” from a Committee of this Court carries as compelled to reveal the source of his information when the much compulsion as a summons or a subpoena. The February 5, “revelation is demanded by the interest of the State.” Parazoargued 1993 letter of the Chairman of the Ad HocCommittee to the that “interest of the State” meant “security of State.” The Court respondent tells it all when it stated that said Committee has “... rejected Parazo’s argument as it held that the two (2) terms are not authority to maintain and enforce order in its proceedings, and to synonymous, the first being broader than the second. It then ruled compel obedience to its processes.” that the maintenance of high standard of the legal profession Second . The letters of invitation to respondent misappreciated the qualifies as an “interest of the State” the promotion of which is a proper function of the press. The first letter, dated February 1, 1993, good ground to compel newsmen to break the confidentiality of their ordered respondent “to give the Committee information that will sources of news. The Court ruling did not sit well with Congress. On assist it in its task, i.e., to definitely and accurately determine the June 15, 1956, Congress enacted R.A. No. 1477 which amended R.A. facts as regards the published rumors and reports of corruption in 53 by changing the phrase “interest of the State” to “security of State.” the judiciary.” The second letter, dated February 5, 1993, stated, inter Respondent invoked R.A. No. 53, as amended, as an additional alia, “... we believe you will want to help the Court x x x by furnishing defense in his favor. The majority opinion, however, shunted aside the Committee with competent evidence, testimonial or otherwise. respondent’s submission as it held that said law does not protect “a Clearly, the purging process cannot be accomplished without proof, journalist who deliberately prints lies or distorts the truth.” There is testimonial or otherwise, as you must no doubt realize, being yourself no disagreement that R.A. No. 53, as amended, does not provide a lawyer.” I submit that the press is not an adjunct of the judiciary, immunity against a blatant falsehood just as the Constitution does any more than is it an annex of the two (2) other branches of not protect a vicious lie. Precisely, section 1 of the law starts with the government. As the press is not an extension of the judiciary , it categorical caveat “without prejudice to his liability under the civil cannot be used as an investigatory instrument to purge courts of and criminal laws, the publisher, editor, columnist ... cannot be misfits, especially when the use of the press will compel it to
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compelled to reveal the source of any newspaper report or information ... .” But well to note, the case at bench is not a libel or a damage suit where we can properly decide, among others, the kind of falsehood and the proper stage of the proceedings when the Court could compel a newsman to reveal the source of his information without violating his freedom of speech and of the press. To my mind, the case at bench should be and can be resolved by simply determining whether respondent’s columns, given their falsity and slant, posed a clear and present danger to our administration of justice. _______________
Atty. Veto is not proof that he did no verification at all. Indeed, the evidence does not show that Messrs. Samson, Garcia, and Veto and Mrs. de la Paz wrote to respondent to give him an opportunity to correct his errors. In the absence of such an opportunity, it is difficult to impute malice against respondent. Without proof that respondent knowingly or recklessly disregarded truth, he should not have even been called upon to disprove the falsity or slant of his columns. He need not have been given the so-called “option” to reveal or not to reveal the sources of his information. There is another aspect of freedom of the press which the majority failed to consider. The sanctity of a newsman’s source of information is not only intended to protect a newsman but also the source of his information. When a person transmits confidential information to a newsman, he is exercising his freedom of speech on condition of anonymity. In Talley v. California,17 an
16 82 Phil. Reports 230 [1948]. 361 VOL. 243, APRIL 6, 1995 361 _______________ In Re: Emil P. Jurado My humble submission is that the evidence on record failed to prove 17 362 US 60 (1960). this clear and present danger, and hence, there is no need to task 362 respondent to reveal the sources of his information in order to prove 362 SUPREME COURT REPORTS ANNOTATED that his reports about judicial corruption are not patent falsehoods. In Re: Emil P. Jurado The Court should always adopt an approach that is less destructive of freedom of speech and of the press. I reserve my full view on the ordinance which penalized the distribution of any handbill which did longitude and latitude of a newsman’s right not to reveal the sources not identify its author was struck down as unconstitutional. It was of his information in a more appropriate case. held that “identification and fear of reprisal might deter perfectly Fourth.The majority stubbornly stresses that it gave respondent an peaceful discussions of public matters of importance.”18 It is thus “option” and did not compel him to reveal the sources of his arguable that a newsman by himself does not have the option to information. Indeed, he was not compelled but he paid a high price reveal or not to reveal the identity of his source of information. His for not revealing the sources of his information. It was held that he source may have an independent right to the protection of his failed to disprove the falsity and slant of his column, hence, was anonymity in the exercise of freedom of speech. This issue, however, liable for contempt. need not be resolved in the case at bench but in a more appropriate My thesis is that the affidavits on the PLDT affair and Atty. Veto’s setting. Be that as it may, I bewail the precipitate majority ruling that party may have proved the falsity or slant of respondent’s columns. a newsman has an unqualified option to reveal the confidential But mere proof of falsity or slant is not proof that the falsehood or source of his information for its inevitable effect is to discourage slant was made knowingly or with reckless disregard of truth to use people from giving confidential information to the press. Again, the the New York Times test. Likewise, proof that respondent did not impairment of the flow of information to the public will suffer an verify his facts from the PLDT and travel agency officials and from irreparable harm.
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Fifth. The majority punishes respondent for publishing “stories shown to be false x x x stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable to substantiate.” The undue weight given t o the falsity aloneof respondent’s columns is unsettling. For after finding respondent’s columns as false, the majority did not go any further to determine whether these falsehoods constitute a clear and present danger to the administration of justice. This libertarian test was originally espoused by Mr. Justice Holmes in Schenck v. United States19 where he ruled “the question in every case is whether the words used are used in such circumstances and are of such nature as to create and present danger that they will bring about the substantive evils that the State has a right to prevent.” We have adopted this libertarian test as early as 1948 in Primicias v. Fugoso20 and which we reiterated, among others, in the leading case of Navarro v. Villegas,21 and the companion cases of Reyes v. Bagatsing, and Ruiz v. Gordon.22
administration of justice. The evidence from which this conclusion can be deduced is nil. The standing of respondent as a journalist is not shown. The extent of readership of respondent is not known. His credibility has not been proved. Indeed, nothing in the record shows that any person lost faith in our system of justice because of his said report. Even the losing party in G.R. No. 94374, Eastern Telephone Philippines, Inc., (ETPI) does not appear to have given any credence to the said false report. I submit that it is not every falsehood that should incur the Court’s ire, lest it runs out of righteous indignation. Indeed, gross falsehoods, vicious lies, and prevarications of paid hacks cannot deceive the public any more than can they cause this Court to crumble. If we adopt the dangerous rule that we should curtail speech to stop every falsehood we might as well abolish freedom of speech for there is yet to come a man whose tongue tells only the truth. In any event, we should take comfort in the thought that falsehoods cannot destroy —only truth does but only to set us free. In a similar vein, I reject the conclusion that respondent’s report about the birthday party of Atty. Veto attended by some justices and _______________ judges seriously eroded our administration of justice. Again, there is not an iota of empirical evidence on record to sustain this irrational 18 Ibid at p. 65. fear. There is less reason to punish respondent for contempt for his 19 80 Phil. 71. report on Atty. Veto’s party. Unlike respondent’s report about the 20 31 SCRA 731 [1970]. justices’ Hongkong trip, his report on Atty. Veto’s party is n ot false 21 125 SCRA 553 [1983]. but only slanted , to use the own description of the majority opinion. 22 126 SCRA 233 [1983]. Also, unlike respondent’s report about the justices’ Hongkong trip 363 which was made while the Court has yet to resolve Eastern VOL. 243, APRIL 6, 1995 363 Telephone’s Motion for Reconsideration in G.R. No. 9 4374, his In Re: Emil P. Jurado report on Atty. Veto’s party does not concern any pending litigation In the case at bench, I cannot perceive how the respondent’s column in this Court. on the alleged Hongkong trip of some justices could have brought 364 about the substantive evil of subverting our orderly administration of 364 SUPREME COURT REPORTS ANNOTATED justice. The affidavits of Mr. Samson, First Vice President of PLDT, of In Re: Emil P. Jurado Mr. Ermin Garcia, Jr., President of CitiWorld Travel Mart Given these material differences, there is no way to conclude that Corporation, and of Mrs. Marissa de la Paz, General Manager of respondent’s report on Atty. Veto’s party degraded our Philway Travel Corporation merely established the falsity of administration of justice. In citing respondent in contempt respondent’s report. There is nothing in the record, however, for slanting his report on Atty. Veto’s party, the majority betrays its showing the degree how respondent’s false report degraded the
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flaccid respect for freedom of speech and of the press. Respondent is a columnist and he does not only write straight news reports but interprets events from his own distinct prism of perception. As a columnist and like any other columnist, he has his own predilections and prejudices and he bends his views in accord with his own slant of faith. I see no reason to penalize respondent for the slants in his views, however, unpleasant and irreverent they may be to the court. When we start punishing a columnist for slants in his views, we shall soon be seeking slits to look for witches among them. Ironically, the majority cites in support of its non-too-liberal stance the cases of New York Times Co. v. Sullivan23 and Garrison v. Louisiana.24 These cases, however, are ground breaking in importance for they expanded the protection given to freedom of speech and of the press. New York Times25 restricted the award of damages in favor of public officials in civil suits for damages arising out of libel precisely because of their chilling effects on the exercise of freedom of speech and of the press. To be entitled to damages, the public official concerned was imposed a very difficult, if not impossible, burden of proof. He was required to prove that the defamatory statement was not only false but was made with “actual malice.”26 This means he has to prove that the defamatory statement was made with “knowing falsity or with a reckless disregard for the truth.”27 On the other hand, Garrison did not only reiterate but even extended the New York Times rule to apply to criminal cases. Mr. Garrison, a District Attorney of Orleans Parish, Louisiana was convicted of criminal defamation under the Louisiana Criminal Defamation Statute. In a _______________ 23 376 US 254. 24 379 US 64. 25 See also Time, Inc. v. Hill , 150 US 374; Curtis Publishing Co. v. Butts and Walker v. Associated Press, 388 US 130. 26 376 US 254, 279-80. 27 Id . 365
VOL. 243, APRIL 6, 1995 365 In Re: Emil P. Jurado press conference, he assailed eight (8) judges for their inefficiency, laziness, excessive vacations, and for refusing to authorize disbursements to cover the expenses of undercover investigations of vice in New Orleans. Impugning their motives he said: “... This raises interesting questions about the racketeer influences on our eight vacation-minded judges.” The Louisiana State courts rejected Garrison’s defense anchored on freedom o f speech. In reversing the Supreme Court of Louisiana, the United States Federal Supreme Court thru Mr. Justice Brennan, held that the “ New York Times rule under which the constitutional guaranty of free speech limits state power in a civil action brought by a public official for criticism of his official conduct, to an award of damages for a false statement made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not, likewise limits state power to impose criminal sanctions for criticism of the official conduct of public officials.” It struck down as unconstitutional the Louisiana statute which permitted punishment of false statements made with ill will, even though they are not made with knowledge of their falsity or in reckless disregard of whether they are true or not . It further held that lack of reasonable belief in the truth of the statements is not the equivalent of reckless disregard of truth. To quote exactly the ruling: “... Even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood ... . The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation ... .” The majority opinion in the case at bench certainly did not follow the New York Times rule which was reiterated and even expanded in Garrison. The majority halted after finding that the respondent ’s columns are false or slanted. As aforestated, the affidavits of Messrs.
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Samson, Garcia, Jr., and Veto and Mrs. de la Paz merely condemned as false respondent’s report but did not prove that respondent wrote his report with knowing or reckless disregard of truth. Yet, the majority was satisfied that this was 366 366 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado enough evidence to punish respondent for contempt. It ruled: “That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if unable to do either of these things, to offer to atone for the harm cause d.” The shift in the burden of proving reckless disregard of truth to respondent Jurado patently violates the New York Timesrule. The New York Times rule fixed this burden of proof on complainants against newsmen. If the New York Times rule has any value to freedom of speech and of the press, it is because it made the burden of proof in this kind of cases extremely difficult to discharge on the part of a complainant against a newsman. In contrast, the majority opinion made it too easy in favor of a complainant. Sixth. The majority opinion also failed to consider that the columns of respondent dealt with the sensitive subject of corruption in courts. It cannot be gainsaid that corruption in government is a matter of highest concern to our citizenry. Yet it is a problem that defies solution primarily because it is a subject where people in the know maintain the countenance of a clam. Thus, the prosecution of corruption in government has not hit a high note and what now appears as the most effective restraint against corruption in government is the fear of the light of print. If the light of print continues to be a strong deterrent against government misdeeds, it is mainly because newsmen have an unimpeded access to information. On many an occasion, these confidential sources of information are the only leads to government malfeasance. To fashion a rule derogatory of the confidentiality of newsmen’s sources will result in tremendous loss in the flow of this rare and valuable information to the press and will prejudice the State’s policy to eliminate corruption
in government. In the absence of clear and convincing evidence that respondent knowingly foisted a falsehood to degrade our administration of justice, we should be slow in citing him for contempt. The New York Times rule correctly warned us that occasional erroneous statements are “inevitable in free debate ... and must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need, to survive.’” 367 VOL. 243, APRIL 6, 1995 367 In Re: Emil P. Jurado Seventh. I appreciate the genuine concern of the majority against certain abuses committed by some members of the press. Be that as it may, the abuses of somenewsmen cannot justify an overarching rule eroding the freedom of all of them. Indeed, the framers of the Constitution knew that these abuses will be committed by some newsmen but still, they explicitly crafted Section 4, Article III of the Constitution to read: “[N]o law shall be passed abridging the freedom of speech, of expression, or of the press ... .” Madison stressed that “some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press.”28 There is an appropriate remedy against abusive newsmen. I submit, however, that the remedy is not to be too quick in wielding the power of contempt for that will certainly chain the hands of many newsmen. Abusive newsmen are bad but laundered news is worse. Eighth. Again, with due respect, I submit that the majority misappreciates the role of the press as a critic of government in a democratic society. The Constitution did not conceive the press to act as the cheer leader of government, including the judiciary. Rather, the press is the agent 29of the people when it gathers news, especially news derogatory to those who hold the reins of government. The agency is necessary because the people must have all available information before they exercise their sovereign judgment. As well observed: “The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrument of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment the suppression or
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abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” 30 As agent of the people, the most important function of the press in a free society is to inform and it cannot _______________ 28 4 Elliot’s Debates on the Federal Constitution 571 [1876] as cited in 48 Fordham Law Review 694, 701 [1980]. 29 See dissenting opinion of Justice Powell in Saxbe v. Washington Post Co., 417 US 843, 863 [1974]. 30 Grosjean v. American Press Co., 297 US 233, 250 [1936]. 368 368 SUPREME COURT REPORTS ANNOTATED In Re: Emil P. Jurado inform if it is uninformed. We should be wary when the independent sources of information of the press dry up, for then the press will end up printing “praise” releases and that is no way for the people to know the truth. In sum, I submit that the equation chosen by the majority has the pernicious effects of hobbling the writing hand of newsmen and of chilling the sources of information of the press. The majority can snicker against “bleeding heart” liberalism but this is a vain attempt to use a fig leaf to conceal its niggardly regard for freedom of speech and of the press. In a large measure, I fear that the majority opinion will weaken the press as an informed and informative source of information of the sovereign people. In so doing, it will unwittingly erode the people’s right to discover the truth. The protection we give to the sanctity of the sources of information of the press is for the benefit of the people. It is designed to benefit all of us, to keep us above the cloud of ignorance. Democracy cannot bloom where sovereignty is rooted on the top soil of an ignorant mass. I vote not to hold the respondent in contempt of court. Emiliano Jurado guilty of contempt of court . Notes.—The right of privacy like right of free expression is not an absolute right. The right cannot be invoked to resist publication and
dissemination of matters of public interest. ( Ayer Productions Pty. Ltd. vs. Capulong, 160 SCRA 861 [1988]) No clear and present danger of any violation of any right to privacy that private respondent could lawfully assert. ( Ibid.) The clear and present danger test is not the only test which has been recognized and applied by courts for making out the appropriate limits of freedom of speech and assembly. ( Zaldivar vs. Sandiganbayan, 170 SCRA 1 [1989]) Punishment for contempt of court is a remedial, preservative or coercive act rather than a vindictive or punitive one . (Facinal vs. Cruz , 213 SCRA 238 [1992]) The freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is not an absolute right. ( National Press Club vs. Commission on Elections, 207 SCRA 1 [1992])
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statement was that the contents of the article are true in almost all respects, thus: x x x This was likewise what he stated in his testimony in court both on direct and on cross-examination. However, by claiming that what he had told the reporter was made by him in the performance of a civic duty, petitioner in effect admitted authorship of the article and not only of the statements attributed to him therein, to wit: x x x Petitioner cannot claim to have been the source of only a few statements in the article in question and point to the other parties as the source of the rest, when he admits that he was correctly identified as the spokesperson of the families during the interview. Same; Same; Criminal Procedure; While the general rule is that the information must set out the particular defamatory words verbatim and as published and that a statement of their substance is insufficient, a defect in this regard may be cured by evidence. — Petitioner points out that the information did not set out the entire news article as published. In fact, the second statement attributed to petitioner was not included in the information. But, while the general rule is that the information must set out the particular defamatory words verbatim and as published and that a statement of their substance is insufficient, a defect in this regard may be cured by _______________ G.R. No. 118971. September 15, 1999.* RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL TRIAL COURT OF MANILA, BRANCH 40, and THE PEOPLE OF THE PHILIPPINES, respondents. Criminal Law; Libel; A person cannot claim to have been the source of only a few statements in an article and point to other parties as the source of the rest when he admits that he was correctly identified as the spokesperson during the interview.—Petitioner claims he was “unfairly singled out” as the source of the statements in the article when any member of the 38 complainant-families could have been the source of the alleged libelous statements. x x x It is true petitioner did not directly admit that he was the source of the statements in the questioned article. What he said in his sworn
* EN BANC. 461 VOL. 314, SEPTEMBER 15, 1999 461 Vasquez vs. Court of Appeals evidence. In this case, the article was presented in evidence, but petitioner failed to object to its introduction. Instead, he engaged in the trial of the entire article, not only of the portions quoted in the information, and sought to prove it to be true. In doing so, he waived objection based on the defect in the information. Consequently, he cannot raise this issue at this late stage. Same; Same; Elements.—To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements must be proved: (a) the allegation of a discreditable act or condition
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concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. Same; Same; Same; When an Allegation Deemed Defamatory.— An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. Same; Same; Same; There is publication if the material is communicated to a third person —it is not required that the person defamed has read or heard about the libelous remark. —There is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for “a man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself.” Same; Same; Same; To satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify the defamed person as the object of the defamatory statement.—To satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement. Same; Same; Same; Words and Phrases; There is no merit to the contention that “landgrabbing,” as charged in the information, has a technical meaning in law.—There is no doubt that the first three elements are present. The statements that Olmedo, through connivance with NHA officials, was able to obtain title to several lots 462 462 SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals in the area and that he was involved in a number of illegal activities (attempted murder, gambling and theft of fighting cocks) were clearly defamatory. There is no merit in his contention that “land grabbing,” as charged in the information, has a technical meaning in law. Such act is so alleged and proven in this case in the popular sense in which it is understood by ordinary people.
Same; Same; Same; Same; For the purpose of determining the meaning of any publication alleged to be libelous that construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was uttered.— As held in United States v. Sotto: . . . [F]or the purpose of determining the meaning of any publication alleged to be libelous “that construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was uttered. The published matter alleged to be libelous must be construed as a whole. In applying these rules to the language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the publisher on being called to account. The whole question being the effect the publication had upon the minds of the readers, and they not having been assisted by the offered explanation in reading the article, it comes too late to have the effect of removing the sting, if any there be, from the words used in the publication.” Same; Same; Same; Under Article 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends. —The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends. 463 VOL. 314, SEPTEMBER 15, 1999 463 Vasquez vs. Court of Appeals Same; Same; Freedom of Expression; Public Officers; The recognition of the right and duty of every citizen in a democracy to
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see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. —In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. Same; Same; Same; Same; “Actual Malice” Rule; Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.—Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. This is the rule of “actual malice.” In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. Same; Same; Same; Evidence; Burden of Proof; A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Article 361 of the Revised Penal Code but would, above all, infringe on the constitutionally guaranteed freedom of expression. — A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would deter citizens 464 464 SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, “public discussion is a political duty” and the “greatest menace to freedom is an inert people.” APPEAL from a decision of the Regional Trial Court of Manila, Br. 40. The facts are stated in the opinion of the Court. Free Legal Assistance Group for petitioner. Tumaru, Guerrero and Tumaru Law respondent.
Offices for
private
MENDOZA, J .: The question for determination in this case is the liability for libel of a citizen who denounces a barangay official for misconduct in office. The Regional Trial Court of Manila, Branch 40, found petitioner guilty and fined him P1,000.00 on the ground that petitioner failed to prove the truth of the charges and that he was “motivated by vengeance in uttering the defamatory statement.” On appeal, the Court of Appeals, in a decision1 dated February 1, 1995, affirmed. Hence, this petition for review. The decision appealed from should be reversed. The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore Area. Sometime in April 1986, he and some 37 families from the area went to see then National Housing Authority (NHA) General Manager Lito Atienza regarding their complaint against their Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA officials, petitioner and his companions were met and interviewed by newspaper reporters at the NHA
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“Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984,” sabi pa ni Vasquez. Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that the latter’s state -
1 Per Associate Justice Celia Lipana-Reyes and concurred in by Associate Justices Asaali S. Isnani and Corona Ibay-Somera. 465 VOL. 314, SEPTEMBER 15, 1999 465 Vasquez vs. Court of Appeals _______________ compound concerning their complaint. The next day, April 22, 1986, the following news article2 appeared in the newspaper Ang Tinig ng 2 Exh. A-1, Records, p. 77. Masa: 466 Nananawagan kahapon kay pangulong Corazon Aquino ang 38 466 SUPREME COURT REPORTS ANNOTATED mahihirap na pamilya sa Tondo Foreshore Area na umano’y inagawan ng lupa ng kanilang barangay chairman sa Vasquez vs. Court of Appeals pakikipagsabwatan sa ilang pinuno ng National Housing Authority ments cast aspersions on him and damaged his reputation. After sapul 1980. conducting preliminary investigation, the city prosecutor filed the Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo following information in the Regional Trial Court of Manila, Branch ng barangay 66, Zone 6, Tondo Foreshore Area, sa mga project 40: manager ng NHA upang makamkam ang may 14 na lote ng lupa sa The undersigned accuses RODOLFO R. VASQUEZ of the crime of naturang lugar. libel committed as follows: Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) That on or about April 22, 1986, in the city of Manila, Philippines, pamilyang apektado, na umaabot lang sa 487.87 metro kuwadrado the said accused, with malicious intent of impeaching the reputation ang kabuuan ng mga lupa na kinatitirikan ng mga barung-barung ng and character of one Jaime Olmedo, chairman of Barangay 66, Zone 38 pamilya. 6 in Tondo, Manila, and with evident intent of exposing him to public “Naninirahan na kami sa mga lupang nabanggit sapul 1950 at hatred, contempt, ridicule, did then and there willfully, unlawfully, pinatunayan sa mga survey ng NHA noong nakalipas na taon na may feloniously and maliciously caused the publication of an article karapatan kami sa mga lupang ito ng pamahalaan,” ani Vasquez. entitled “38 Pamilya Inagawan ng Lupa” in Ang Tinig ng Masa, a “Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, daily newspaper sold to the public and of general circulation in the nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager Philippines in its April 22, 1986 issue, which portion of the said at legal officers ng NHA,” sabi ni Vasquez. article reads as follows: Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city Nananawagan kahapon kay pangulong Corazon Aquino ang 38 hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng mahihirap na pamilya sa Tondo Foreshore Area na umano’y pulisya ang barangay chairman kaya “nakalusot” ang mga ginawa inagawan ng lupa ng kanilang barangay chairman sa nitong katiwalian. pakikipagsabwatan sa ilang pinuno ng National Housing Authority Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din sapul 1980. umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo maging sa mga nakawan ng manok. ng barangay 66, Zone 6, Tondo Foreshore Area sa mga project
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manager ng NHA upang makamkam ang may 14 na lote ng lupa sa . I.THE COURT OF APPEALS ERRED IN naturang lugar. AFFIRMING THE DECISION OF THE TRIAL COURT x x x “Pawang lupa ng gobyerno ang mga lupa at ilegal man na PINPOINTING PETITIONER AS THE SOURCE OF THE patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga ALLEGED LIBELOUS ARTICLE. project manager at legal officers ng NHA,” sabi ni Vasquez. . II.THE COURT OF APPEALS ERRED IN Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city AFFIRMING THE DECISION OF THE TRIAL COURT hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng THAT PETITIONER IMPUTED THE QUESTIONED ACTS pulisya ang barangay chairman kaya “nakalusot” ang mga ginawa TO COMPLAINANT. nitong katiwalian. Bukod sa pagkamkam ng mga lupaing gobyerno, III.THE COURT OF APPEALS ERRED IN . kasangkot din umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x x x AFFIRMING THE DECISION OF THE TRIAL COURT with which statements, the said accused meant and intended to THAT THE ALLEGED IMPUTATIONS WERE MADE convey, as in fact he did mean and convey false and malicious MALICIOUSLY. imputations that said Jaime Olmedo is engaged in l andgrabbing and . IV.THE COURT OF APPEALS ERRED IN 467 AFFIRMING THE DECISION OF THE TRIAL COURT VOL. 314, SEPTEMBER 15, 1999 467 WHICH FAILED TO APPRECIATE PETITIONER’S Vasquez vs. Court of Appeals DEFENSE OF TRUTH. involved in illegal gambling and stealing of chickens at the Tondo . V.THE COURT OF APPEALS ERRED IN Foreshore Area, Tondo, Manila, which statements, as he well knew, AFFIRMING THE DECISION OF THE TRIAL COURT were entirely false and malicious, offensive and derogatory to the THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN. good name, character and reputation of said Jaime Olmedo, thereby tending to impeach, besmirch and destroy the honor, character and 468 reputation of Jaime Olmedo, as in fact, the latter was exposed to 468 SUPREME COURT REPORTS ANNOTATED dishonor, discredit, public hatred, contempt and ridicule. Contrary to law. Vasquez vs. Court of Appeals Upon being arraigned, petitioner entered a plea of not guilty, We will deal with these contentions in the order in which they are whereupon the case was tried. The prosecution presented Barangay made. Chairman Olmedo and his neighbor, Florentina Calayag, as witnesses. First . Petitioner claims he was “unfairly singled out” as the source of On the other hand, the defense presented Ciriaco Cabuhat, Nicasio the statements in the article when any member of the 38 Agustin, Estrelita Felix, Fernando Rodriguez—all residents of the complainant-families could have been the source of the alleged Tondo Foreshore Area—and petitioner as its witnesses. libelous statements.3 The reference is to the following portion of the On May 28, 1992, the trial court rendered judgment finding decision of the Court of Appeals: petitioner guilty of libel and sentencing him to pay a fine of . . . In his sworn statement, appellant admitted he was the source of P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence, the libelous article (Exh. “B”). He affirmed this fact when he testified this petition for review. Petitioner contends that — in open court as follows: That his allegation on the act of landgrabbing by Olmedo was based on the alleged report and pronouncements of the NHA representatives (p. 5, tsn, Oct. 18, 1989);
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that said allegations were made by him before the local press people in the pursuit of fairness and truthfulness and not in bad faith (pp. 89, id .); that the only inaccurate account in the published article of “Ang Tinig ng Masa” is the reference to the 487.87 sq. m. lot, on which Olmedo’s residence now stands, attributed by the reporter as the lot currently occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp. 4-5, tsn, January 15, 1990); and that after the interview, he never expected that his statement would be the cause of the much-publicized libelous article (pp. 4-6, tsn, Nov. 15, 1989).4 It is true petitioner did not directly admit that he was the source of the statements in the questioned article. What he said in his sworn statement5 was that the contents of the article are true in almost all respects, thus: 9. Tama ang nakalathala sa pahayagang “Ang Masa” maliban na lang sa tinutukoy na ako at ang mga kasamahang maralitang taga-lungsod ay nakatira sa humigit kumulang 487.87 square meters sapagkat ang nabanggit na 487.87 square meters ay siyang kinatitirikan ng bahay ni Barangay Chairman Olmedo kung saan nakaloob ang anim na lote—isang paglabag sa batas o regulasyon ng NHA; _______________ 3 Petition, pp. 9-12; Rollo, pp. 17-20. 4 CA Decision, p. 4; Id ., p. 47. 5 Exh. B; Records, p. 79. (Emphasis added) 469 VOL. 314, SEPTEMBER 15, 1999 469 Vasquez vs. Court of Appeals 10. Ang ginawa kong pahayag na nailathala sa “Ang Masa” ay sanhi ng aking nais na maging mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap sa Tondo Foreshore Area kung saan ako at sampu ng aking mga kasamang maralitang tagalungsod ay apektado at naaapi. This was likewise what he stated in his testimony in court both on direct6 and on cross-examination.7 However, by
_______________ 6 TSN, pp. 3-4, Nov. 15, 1989. ATTY. VIRGILIO Mr. Vasquez, you are charged with having [made] a OCAYA — statement that was reflected in the Pahayagang [Ang] Masa. Where was this alleged statement taken? A — What I remember, sir, the reporter got the statement from the National Housing Authority, and we were many at that time that were being interviewed by the reporters, sir. .... Q— Is that [report] reflected in the Pahayagang [Ang] Masa an accurate report in all aspects? A — There are some which are correct and some which are wrong, sir. Q— Which are those which are not correct? A — Regarding the statement that I was one of those whose residence and lot area is around more than 400 sq. meters, sir. 7 TSN, p. 5, Jan. 15, 1990. [ATTY. CHARLIE Tell us, Mr. Witness, you said in your affidavit that part TUMARU]— of the contents of the pu blication “Ang Masa” was not correct which pertains to 487.87 square meters. However, you were able to make that conclusion when you were able to read that part of the publication, “Ang Masa.” A — No, sir, I told you, sir, that the contents of my sworn statement is correct. But some portion of the newspaper “Ang Masa” particularly the portion regarding the 487.87 square meters wherein me and my companions were living, that is not correct because the lot was occupied by the barangay chairman Olmedo and the lot was owned by the government. 470 470 SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals
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claiming that what he had told the reporter was made by him in the performance of a civic duty, petitioner in effect admitted authorship of the article and not only of the statements attributed to him therein, to wit: “Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA,” sabi ni Vasquez. .... “Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984,” sabi pa ni Vasquez. Petitioner cannot claim to have been the source of only a few statements in the article in question and point to the other parties as the source of the rest, when he admits that he was correctly identified as the spokesperson of the families during the interview. Second . Petitioner points out that the information did not set out the entire news article as published. In fact, the second statement attributed to petitioner was not included in the information. But, while the general rule is that the information must set out the particular defamatory words verbatim and as published and that a statement of their substance is insufficient, 8 a defect in this regard may be cured by evidence.9 In this case, the article was presented in evidence, but petitioner failed to object to its introduction. Instead, he engaged in the trial of the entire article, not only of the portions quoted in the information, and sought to prove it to be true. In doing so, he waived objection based on the defect in the information. Consequently, he cannot raise this issue at this late stage.10
Vasquez vs. Court of Appeals Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he said was true and was made with good motives and for justifiable ends. To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements must be proved: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.11 An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.12 There is publication if the material is communicated to a third person.13 It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for “a man’s reputation is the estimate in which others hold him, not the good opinion which he has of himself.”14 On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the o bject of the defamatory statement.15 Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
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8 United States v. Eguia, 38 Phil. 857 (1918). 9 See People v. Burgos, 59 Phil. 375 (1934). 10 Revised Rules on Criminal Procedure, Rule 117, §8; People v. Garcia, 281 SCRA 463 (1997). 471 VOL. 314, SEPTEMBER 15, 1999
11 Daez v. Court of Appeals, 191 SCRA 61 (1990). 12 Revised Penal Code, Art. 353. 13 M.H. Newell, The Law on Slander and Libel in Civil and Criminal Cases §175 (1924). 14 Alonzo v. Court of Appeals, 241 SCRA 51 (1995). 15 Kunkle v. Cablenews-American, 42 Phil. 757 (1922).
471
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472 472
SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals
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1.A private communication made by any person to another in the performance of any legal, moral or security duty; and
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2.A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. In this case, there is no doubt that the first three elements are present. The statements that Olmedo, through connivance with NHA officials, was able to obtain title to several lots in the area and that he was involved in a number of illegal activities (attempted murder, gambling and theft of fighting cocks) were clearly defamatory. There is no merit in his contention that “landgrabbing,” as charged in the information, has a technical meaning in law. 16 Such act is so alleged and proven in this case in the popular sense in which it is understood by ordinary people. As held in United States v. Sotto:17 . . . [F]or the purpose of determining the meaning of any publication alleged to be libelous “that construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was uttered. The published matter alleged to be libelous must be construed as a whole. In applying these rules to the language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the publisher on being called to account. The whole question being the effect the publication _______________
16 In Republic v. Court of Appeals, 94 SCRA 865 (1979), usurpation or illegal appropriation of 50 hectares of state-owned urban land was considered as “landgrabbing.” Petitioner, on the other hand, cites the concurring opinion of Justice Ramon C. Aquino in Tahanan Development Corporation v. Court of Appeals, 118 SCRA 273, 325 (1982) that landgrabbing may be perpetrated by (1) actual and physical usurpation, (2) expanded survey, (3) fake Spanish titles, and (4) reconstitution of fake Torrens titles, registration decrees, or judgments in land registration cases. Petition, p. 15; Rollo, p. 23. 17 38 Phil. 666, 672-673 (1918). 473 VOL. 314, SEPTEMBER 15, 1999 473 Vasquez vs. Court of Appeals had upon the minds of the readers, and they not having been assisted by the offered explanation in reading the article, it co mes too late to have the effect of removing the sting, if any there be, from the words used in the publication.” Nor is there any doubt that the defamatory remarks referred to complainant and were published. Petitioner caused the publication of the defamatory remarks when he made the statements to the reporters who interviewed him.18 The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends.19 In this case, contrary to the findings of the trial court, on which the Court of Appeals relied, petitioner was able to prove the truth of his charges against the barangay official. His allegation that, through connivance with NHA officials, complainant was able to obtain title to several lots at the Tondo Foreshore Area was based on the letter20 of NHA In-
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_______________ 18 TSN, pp. 3-4, Nov. 15, 1989. 19 Art. 361 provides: Proof of the truth.—In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted. Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties. In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. 20 Exh. 12; Records, pp. 238-239. 474 474 SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals spector General Hermogenes Fernandez to petitioner’s counsel which reads: 09 August 1983 Atty. Rene V. Sarmiento Free Legal Assistance Group (FLAG) 55 Third Street New Manila, Quezon City Dear Atty. Sarmiento: In connection with your request that you be furnished with a copy of the results of the investigation regarding the complaints of some Tondo residents against Chairman Jaime Olmedo, we are providing you a summary of the findings based on the investigation conducted by our Office which are as follows: 1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedo’s present structure is constructed on six lots which were
awarded before by the defunct Land Tenure Administration to different persons as follows: Lot 4 — Juana Buenaventura - 79.76 sq. m. Lot 6 — Servando Simbulan - 48.50 sq. m. Lot 7 — Alfredo Vasquez - 78.07 sq. m. Lot 8 — Martin Gallardo - 78.13 sq. m. Lot 9 — Daniel Bayan - 70.87 sq. m. Lot 1 — Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800) The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus sold the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other remaining lots were either sold to Mr. Olmedo and/or to his immediate relatives. Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo, with an area of 47.40 sq. m. The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
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2. Block 261, SB 8, Area III
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A four-door apartment owned by Mr. Olmedo is being rented to uncensused residents. 475 VOL. 314, SEPTEMBER 15, 1999 475 Vasquez vs. Court of Appeals 3. Block 262, SB 8, Area III Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not yet titled. 4. Block 256, SB 5, Area III Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected on a non-titled lot. The adjacent lot is titled in the name of Victoria. It was issued OCT No. 10217 with an area of 202.23 sq. m. Inside this compound is another structure owned and occupied by Amelia Dofredo, a censused houseowner. The titled lot of Victoria now has an area of 338.20 sq. m. For your information.
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(s/t) HERMOGENES C. FERNANDEZ Inspector General Public Assistance & Action Office In addition, petitioner acted on the basis of two memoranda, 21 both dated November 29, 1983, of then NHA General Manager Gaudencio Tobias recommending the filing of administrative charges against the NHA officials “responsible f or the alleged irregular consolidation of lots [in Tondo to Jaime and Victoria Olmedo.]” With regard to the other imputations made by petitioner against complainant, it must be noted that what petitioner stated was that various charges (for attempted murder against petitioner, gambling, theft of fighting cocks) had been filed by the residents against their barangay chairman but these had all been dismissed. Petitioner was able to show that Olmedo’s involvement in the theft of fighting cocks was the subject of an affidavit-complaint,22 dated October 19, 1983, signed by Fernando Rodriguez and Ben Lareza, former barangay tanods of Barangay 66, Zone 6, Tondo. Likewise, petitioner presented a resolution,23 dated March 10, 1988, of the Office of the Special Prosecutor in TBP-87-03694, stating _______________ 21 Exhs. 3 and 4; Records, pp. 225- 226. 22 Exh. 17; Id ., p. 251. 23 Exh. 16; Id ., pp. 246-250. 476 476 SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals that charges of malversation and corrupt practices had been filed against Olmedo and nine (9) other barangay officials but the same were dismissed. Indeed, the prosecution’s own evidence bears out petitioner’s statements. The prosecution presented the resolution24 in TBP Case No. 84-01854 dismissing the charge of attempted murder filed by petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner “only tried to prove that the complainant [barangay chairman] is guilty of the crimes alluded to; accused, however, has not proven that the complainant committed the crimes.” For that is not what petitioner said as reported in the Ang Tinig ng Masa. The fact that charges had been filed against the barangay official, not the truth of such charges, was the issue. In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan,25 which this Court has cited with approval _______________ 24 Exhs. D to D-2; Id ., pp. 289-291. 25 376 U.S. 254, 11 L.Ed.2d 686 (1964). For a fascinating account of this case, see Anthony Lewis, Make No Law —The Sullivan Case and the First Amendment (1991). 477 VOL. 314, SEPTEMBER 15, 1999 477 Vasquez vs. Court of Appeals in several of its own decisions. 26 This is the rule of “actual malice.” In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not.
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A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a selfgoverning community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, “public discussion is a political duty” and the “greatest menace to freedom is an inert people.” 27 Complainant contends that petitioner was actuated by vengeful political motive rather than by his firm conviction that he and his fellow residents had been deprived of a property right because of acts attributable to their barangay chairman. The Court of Appeals, sustaining complainant’s contention, held: That the said imputations were malicious may be inferred from the facts that appellant and complainant are enemies, hence, accused was motivated by vengeance in uttering said defamatory statements and that accused is a leader of Ciriaco Cabuhat who was defeated by complainant when they ran for the position of barangay captain. . . .28 _______________ 26 Lopez v. Court of Appeals, 145 Phil. 219 (1970); Mercado v. Court of First Instance, 201 Phil. 565(1982); Babst v. National Intelligence Board, 132 SCRA 316, 325 (1984) (Fernando, C.J., concurring). 27 Whitney v. California, 247 U.S. 357, 375, 71 L.Ed. 1095, 1105 (1927) (concurring). 28 CA Decision, p. 5; Rollo, p. 48. 478 478 SUPREME COURT REPORTS ANNOTATED Vasquez vs. Court of Appeals As already stated, however, in accordance with Art. 361, if the defamatory matter either constitutes a crime or concerns the performance of official duties, and the accused proves the truth of h is charge, he should be acquitted.29
Instead of the claim that petitioner was politically motivated in making the charges against complainant, it would appear that complainant filed this case to harass petitioner. Art. 360 of the Revised Penal Code provides: Persons responsible.— Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof . . . . Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was charged in court. What was said in an analogous case30 may be applied mutatis mutandis to the case at bar: It is curious that the ones most obviously responsible for the publication of the allegedly offensive news report, namely, the editorial staff and the periodical itself, were not at all impleaded. The charge was leveled against the petitioner and, “curiouser” still, his _______________ 29 Compare: “The third paragraph of Art. 361 must have reference to the two cases referred to in the second paragraph where proof of the truth may be admitted, namely: (1) if the act or omission imputed constitutes a crime; and (2) if the imputation not constituting a crime is made against Government employees with respect to facts related to the discharge of their duties. The question may arise whether or not it is necessary to show that the accused who proved the truth of the imputation published it with good motives and for justifiable ends in order that he may be acquitted. It is believed that since the accused did the public a service, proof of his good motives and justifiable ends is not necessary.” 2 Luis B. Reyes, The Revised Penal Code 361 (1981). 30 Manuel v. Paño, 172 SCRA 225 (1989). 479 VOL. 314, SEPTEMBER 15, 1999 479 Vasquez vs. Court of Appeals
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clients who have nothing to do with the editorial policies of the newspaper. There is here a manifest effort to persecute and intimidate the petitioner for his temerity in accusing the ASAC agents who apparently enjoyed special privileges —and perhaps also immunities —during those oppressive times. The non-inclusion of the periodicals was a transparent hypocrisy, an ostensibly pious if not at all convincing pretense of respect for freedom of expression that was in fact one of the most desecrated liberties during the past despotism. 31 WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is ACQUITTED of the crime charged. SO ORDERED. Davide, Jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quis umbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares Santiago, JJ.,concur. Appealed decision reversed; Petitioner acquitted. Notes.—Jurisdiction over libel cases are still lodged with the Regional Trial Courts pursuant to Article 360 of the Revised Penal Code. ( Manzano vs. Valera, 292 SCRA 66[1998]) In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named; It is not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. ( Borjal vs. Court of Appeals, 301 SCRA 1 [1999])
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G.R. No. 126466. January 14, 1999.* ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs.COURT OF APPEALS and FRANCISCO WENCESLAO, respondents. Actions; Libel; In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named; It is not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication.—In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. Regrettably, these requisites have not been complied with in the case at bar. ________________ * SECOND DIVISION. 2 2 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals Same; Same; Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack.—Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to note that the revelation of the identity of
the person alluded to came not from petitioner Borjal but from private respondent himself when he supplied the information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he was the “organizer” of the FNCLT referred to in the Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls. Same; Same; Privileged Communications; Words and Phrases; Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith while qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. — A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong “private communications” and “fair and true report without any comments or remarks.” Same; Same; Same; Constitutional Law; Freedom of Expression; Criminal Law; The enumeration under Article 354 of the Revised Penal Code is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged; The rule on privileged communications had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press, and this constitutional right cannot be abolished by the mere failure of th e legislature to give it express recognition in the statute punishing libels.—Indisputably, petitioner Borjal’s questioned writings are not within the exceptions of Art. 354 of The Revised Penal Code for, as correctly observed by the appellate court, they are neither private 3
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VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals communications nor fair and true report without any comments or remarks. However this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Cañete, this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels. Same; Same; Same; Same; Same; The concept of privileged communications is implicit in the freedom of the press. —The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v. Gutierrez and reiterated in Santos v. Court of Appeals—To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing violence to the concept of privileged communications implicit in the freedom of the press. As was so well put by Justice Malcolm in Bustos: ‘Public policy, the welfare of society, and the orderly administration of government have demanded protection of public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.’ Same; Same; Same; Same; Same; Privileged communications must, sui generis, be protective of public opinion, which closely adheres to the democratic theory of free speech as essential to collective selfdetermination and eschews the strictly libertarian view that it is protective solely of self-expression which makes its appeal to the individualistic ethos that so dominates our popular and political culture.—The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui generis, be protective of public opinion. This closely adheres to the democratic theory of free speech as essential to collective self-determination and
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eschews the strictly libertarian view that it is protective solely of selfexpression which, in the words of Yale Sterling Professor Owen Fiss, makes its appeal to the individualistic ethos that so dominates our popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision 4 4 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals exempting from liability only private communications and fair and true report without comments or remarks defeats, rather than promotes, the objective of the rule on privileged communications, sadly contriving as it does, to suppress the healthy efflorescence of public debate and opinion as shining linchpins of truly democratic societies. Same; Same; Same; Same; Same; Public Officers; In order that a discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition—if the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.— To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. Same; Same; Same; Same; Same; An organization aiming to reinvent and reshape the transportation laws of the country and seeking to source its funds for the project from the public at large cannot dissociate itself from the public character of its mission. —
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The declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An organization such as the FNCLT a iming to reinvent and reshape the transportation laws of the country and seeking to source its funds for the project from the public at large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of the qualifications and integrity of the personalities behind it. 5 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals Same; Same; Same; Same; Same; Words and Phrases; “Public figure” is a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a public personage—in other words, a celebrity.—In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also defined “public figure” in Ayers Production Pty., Ltd. v. Capulong as—x x x x a person who, by his accomplishments, fame, mode of living, or by adopt-ing a profession or calling which gives the public a legitimate interest in his doings, his affairs and his cha racter, has become a ‘public personage.’ He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. Same; Same; Same; Same; Same; If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense
the individual did not voluntarily choose to become involved. —But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant 5 and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety. Same; Same; Same; Same; Same; Malice; Presumptions of Malice; While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption 6 6 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals of malice.—The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial. We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. The onus of proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. Same; Same; Same; Same; Same; Same; Words and Phrases; “Malice,” E xplained.—Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive. It is the essence of the crime of libel.
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Same; Same; Same; Same; Same; Same; Same; “Reckless disregard of what is false or not” means that the defendant entertains serious doubt as to the truth of the publication, or that he possesses a high degree of awareness of their probable falsity. —To be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they are false or in reckless disregard of whether they are false or not. “Reckless disregard of what is false or not” means that the defendant entertains serious doubt as to the truth of the publication, or that he possesses a high degree of awareness of their probable falsity. Same; Same; Same; Same; Same; Same; Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice—there must be some room for misstatement of fact as well as for misjudgment. —Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held— A newspaper especially 7 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community. Same; Same; Same; Same; Same; To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are
required to allow an adequate margin of error by protecting some inaccuracies.—To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of “actual malice” on the part of the person making the libelous statement. Same; Same; Same; Same; Same; Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. — At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos, that “the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference to comments upon his official acts.” Same; Same; Same; Same; Same; The Court takes this opportunity to remind media practitioners of the high ethical standards attached to and demanded by their noble profession —without a lively sense of responsibility, a free press may readily become a powerful instrument of injustice.— We must however take this 7 opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disre8 8 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals gard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and
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brutish. Therefore, to recognize that there can be no absolute “unrestraint” in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the freedom of others. If there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, “[W]ithout x x x a lively sense of responsibility, a free press may readily become a powerful instrument of injustice.” Same; Same; Same; Same; Same; It is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.—Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we have always strongly maintained, as we do now, that freedom of expression is man’s birthright— constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its “ defensor fidei ” in a democratic society such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen. Same; Same; Same; Same; Same; Damages; Proof and motive that the institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly established to entitle the victim to damages.—On petitioners’ counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages. On the contrary, private respondent acted within his rights to protect his honor from what he perceived to be malicious imputations against him. Proof and motive that the institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law could not have 9 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals meant to impose a penalty on the right to litigate, nor should counsel’s fees be awarded every time a party wins a suit. Same; Same; Same; Same; Same; It is the brightest jewel in the crown of the law to speak and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other.—For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.—Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, a judge with his jury, we are, all of us, the subject of public discussion. The view of our court has been thus stated: ‘It is only in despotisms that one must speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on a subject touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain the golden mean between defamation, on one hand, and a healthy and ro bust right of free public discussion, on the other.’ PETITION for review on certiorari of a decision of the Court of Appeals. The facts are stated in the opinion of the Court. Angara, Abello, Concepcion, Regala & Cruz for petitioners. Cenon C. Sorreta for private respondent. “The question is not so much as who was aimed at as who was hit .” (Pound, J., in Corrigan v. Bobbs-Merill Co., 228 N.Y. 58 [1920]). BELLOSILLO, J .: PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested freedoms of man, the issue of
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the right of free expression bestirs and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to resurvey its ever shifting terrain, explore and furrow its heretofore uncharted moors and val10 10 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals leys and finally redefine the metes and bounds of its controversial domain. This, prominently, is one such case. Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal metamorphoses than his right to freely and openly express his views. Blackstone’s pontifical comment that “where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law . . . the liberty of the press, properly understood, is by no means infringed or violated,” found kindred expression in the landmark opinion of England’s Star Chamber in the Libelis Famosis case in 1603.1 That case established two major propositions in the prosecution of defamatory remarks: first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal libel liability under the clear and present danger rule, to the other end of the spectrum in defense of the constitutionally protected status of unpopular opinion in free society. Viewed in modern times and the current revolution in information and communication technology, libel principles formulated at one time or another have waxed and waned through the years in the constant ebb and flow of judicial review. At the very least, these principles have lost much of their flavor, drowned and swamped as they have been by the ceaseless cacophony and din of thought and discourse emanating from just about every source and direction, aided no less by an increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been devalued by its utter commonality; and we agree, for its logical effect is to benumb
thought and sensibility on what may be considered as criminal illegitimate encroachments on the right of persons to _______________ 1 Alfred H. Knight, The Life of the Law, Crown Publishers, Inc., New York, 1996, pp. 102, 230 and 231. 11 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals enjoy a good, honorable and reputable name. This may explain the imperceptible demise of criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage on one’s reputation. In this petition for review, we are asked to reverse the Court of Appeals in “ Francisco Wenceslao v. Arturo Borjal and Maximo Soliven,” CA-G.R. No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and publishing certain articles claimed to be derogatory and offensive to private respondent Francisco Wenceslao. Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the column Jaywalker. Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business consultant and journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian Sison, then Chairman of the House of Representatives SubCommittee on Industrial Policy. During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the House SubCommittee on Industrial Policy, those who attended agreed to organize the First National Conference on Land Transportation (FNCLT) to be participated in by the private sector in the transport industry and
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government agencies concerned in order to find ways and means to solve the transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill that would embody a long-term land transportation policy for presentation to Congress. The conference which, according to private respondent, was estimated to cost around P1,815,000.00 would be funded through solicitations from various sponsors such as government agencies, 12 12 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals private organizations, transport firms, and individual delegates or participants.2 On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the business community for the support of the conference. Between May and July 1989 a series of articles written by petitioner Borjal was published on different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an “organizer of a conference” without naming or identifying private respondent. Neither did it refer to the FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of petitioner together with the dates they were published3— 31 May 1989 Another self-proclaimed ‘hero’ of the EDSA Revolution goes around organizing ‘seminars and conferences’ for a huge fee. This is a simple ploy coated in jazzy letterheads and slick prose. The ‘hero’ has the gall to solicit fees from anybody with bucks to spare. Recently, in his usual straightforward style, Transportation Secretary Rainerio ‘Ray’ Reyes, asked that his name be stricken off from the letterheads the ‘hero’ has been using to implement one of his pet ‘seminars.’ Reyes said: ‘I would like to reiterate my request that you delete my name.’ Note that Ray Reyes is an honest man who would confront anybody eyeball to eyeball without blinking.
9 June 1989 Another questionable portion of the so-called conference is its unauthorized use of the names of President Aquino and Secretary Ray Reyes. The conference program being circulated claims that President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and Reyes have not accepted the _______________ 2 Decision of the Court of Appeals in CA-G.R. No. 40496, Records, pp. 114-116. 3 Id ., pp. 144-149; Exhs. “A” to “G.” 13 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals invitation to appear in this confab. Ray Reyes even says that the conference should be unmasked as a moneymaking gimmick. 19 June 1989 x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry and to almost all government agencies. And the letterheads carried the names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out from Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the waste basket. Now, if the 3,000 persons and agencies approached by the organizer shelled out 1,000 each, that’s easily P3 million to a project that seems so unsophisticated. But note that one garment company gave P100,000, after which the Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria Macapagal-Arroyo was approached by the organizer to expedite the garment license application of the P100,000 donor. 21 June 1989
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A ‘conference organizer’ associated with shady deals seems to have a lot of trash tucked inside his closet. The Jaywalker continues to receive information about the man’s dubious deals. His notoriety, according to reliable sources, has reached the Premier Guest House where his name is spoken like dung.
xxx The ‘organizer’s’ principal gamely went along, thinking that his ‘consultant’ had nothing but the good of these sectors in mind. It was only later that he realized that the ‘consultant’ was acting with a burst of energy ‘in aid of extortion.’ The ‘consultant’ was fired.
xxx xxx The first information says that the ‘organizer’ tried to mulct half a million pesos from a garment producer and exporter who was being investigated for violation of the rules of the Garments, Textile, Embroidery and Apparel Board. The ‘organizer’ told the garment exporter that the case could be fixed for a sum of P500,000.00. The organizer got the shock of his life when the exporter told him: ‘If I have that amount, I will hire the best lawyers, not you.’ The organizer left in a huff, his thick face very pale.
There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate under a guise of a wellmeaning reformist. He has intellectual pretensions —and sometimes he succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naïve newspaper people. He has been turning out a lot of funny-looking advice on investments, export growth, and the like.
xxx
xxx
Friends in government and the private sector have promised the Jaywalker more ‘dope’ on the ‘organizer.’ It seems that he was not only indiscreet; he even failed to cover his tracks. You will be hearing more of the ‘organizer’s’ exploits from this corner soon. 14 14 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influence-peddlers from entering the premises of his department. But the Cabinet man might not get his wish. There is one ‘organizer’ who, even if physically banned, can still concoct ways of doing his thing. Without a tinge of remorse, the ‘organizer’ could fill up his letterheads with names of Cabinet members, congressmen, and reputable people from the private sector to shore up his shady reputation and cover up his notoriety.
22 June 1989 3 July 1989 The scheming ‘organizer’ we have been writing about seems to have been spreading his wings too far. A congressional source has informed the Jaywalker that the schemer once worked for a congressman from the North as some sort of a consultant on economic affairs. The first thing the “organizer” did was to initiate hearings and round-the-table discussions with people from the business, export and—his favorite—the garments sector.
A supposed conference on transportation was a big failure. The attendance was very poor and the few who participated in the affair were mostly leaders of jeepney drivers’ groups. None of the government officials involved in regulating public transportation was there. The big names in the industry also did not participate. With such a poor attendance, one wonders why the conference organizers
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went ahead with the affair and tried so hard to convince 3,000 companies and individuals to contribute to the affair. 15 VOL. 301, JANUARY JANUARY 14, 1999 Borjal vs. Court Court of Appeals xxx The conference was doomed from the start. It was bound to fail. The personalities who count in the field of transportation refused to attend the affair or withdrew their support after finding out the background of the organizer of the conference. How could a conference on transportation succeed without the participation of the big names in the industry and government government policy-makers? policy-makers? Private respondent reacted to the articles. He sent a letter to The Philippine Starinsisting Starinsisting that he was the “organizer” alluded to in petitioner Borjal’s columns.4 columns. 4 In a subsequent letter to The Philippine Star, Star, private respondent refuted the matters contained in petitioner Borjal’s columns and openly challenged him in this manner— manner — To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to relinquish this position in case it is found that I have misappropriated even one peso of FNCLT money. On the other hand, if I can prove that Borjal has used his column as a ‘hammer’ to get clients for his PR Firm, AA Borjal Associates, he should resign from the STAR and never again write a column. Is it a deal? 5 Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner Borjal for unethical conduct. He accused petitioner Borjal Borjal of using his column as a form of leverage to obtain contracts for his public relations firm, AA Borjal Associates.6 Associates.6 In turn, petitioner Borjal published a rejoinder to the challenge of private respondent not only to protect his name and honor but also to refute the claim that he was using his column for character assassination.7 assassination. 7 ________________ ________________
4 Published in the 4 June 1989 issue of The Philippine Star; see Exh. “R.” 5 TSN, 18 May 1992, p. 43; Exh. “1.” ., pp. 60-64; 60-64; Exh. “21.” 15 6 Id ., 7 Exh. “16.” 16 16 SUPREME COURT REPORTS ANNOTATED ANNOTATED Borjal vs. Court Court of Appeals Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained by the Department Department of Justice and later by the Office of the President. President. On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel subject of the instant case.8 case.8 In their answer, petitioners interposed compulsory counterclaims for actual, moral and exemplary damages, plus attorney’s fees and costs. After due consideration, the trial court decided in favor of private respondent Wenceslao and ordered petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00 for attorney’s fees, and to pay the costs of suit. The Court of Appeals affirmed the decision of the court a quo but quo but reduced the amount of the monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney’s fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court ruled inter alia that private respondent was sufficiently identifiable, although not named, in the questioned articles; that private respondent was in fact defamed by petitioner Borjal Borjal by describing him variously as a “self “self -proclaimed hero,” “a conference organizer associated with shady deals who has a lot of trash tucked inside his closet,” “thick face,” and “a person with dubious ways”; that petitioner’s claim of privileged commun ication was unavailing since the privileged character of the articles was lost
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by their publication in a newspaper of general circulation; that petitioner could have performed his office as a newspaperman without necessarily transgressing the rights of Wenceslao by call ing the attention of the gov-
Wenceslao was sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious consideration to the findings of the Department of Justice and the Office of the President that private respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding that the degree of proof required in a preliminary investigation is merely prima merely prima facie evidence facie evidence which is significantly less than the pre-
________________ ________________ 8 Docketed as Civil Case No. Q-90-7058, raffled to RTC-Br. 98, Quezon City. 17 VOL. 301, JANUARY JANUARY 14, 1999 Borjal vs. Court Court of Appeals ernment offices concerned to examine the authority by which Wenceslao acted, warning the public against contributing to a conference that, according to his perception, lacked the univocal indorsement of the responsible government officials, or simply informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and, that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretensions to Wenceslao, petitioner Borjal Borjal crossed the th in but clear line that separated fair comment from actionable defamation. Private respondent manifested his desire to appeal that portion of the appellate court’s decision which reduced the amount of damages awarded him by filing with this Court a Petition a Petition for Extension of Time to File Petition Petition and a Motion for Suspension for Suspension of Time to File Petition.9 Petition.9 However, in a Resolution dated 27 May 1996, the Second Division denied both motions: the first, for being premature, and the second, for being a wrong remedy. On 20 November 1996 when the First Division consolidated and transferred the present case to the Second Division, there was no longer any case thereat with which to consolidate this case since G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months earlier. On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent
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9 Wenceslao v. Court of Appeals, Appeals , G.R. No. 124396. 18 18 SUPREME COURT REPORTS ANNOTATED ANNOTATED Borjal vs. Court Court of Appeals ponderance of evidence required in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly privileged communication; communication; (d) in refusing to apply the “public official doctrine” laid down in New in New York Times v. Sullivan; Sullivan; (e) in ruling that the questioned articles lost their privileged character because of their publication in a newspaper of general circulation; (f) in ruling that private respondent has a valid cause of action for libel against petitioners although he failed to prove actual malice on their part, and that the prosecutors of the City of Manila, the Department of Justice, and eventually, the Office of the President, had already resolved that there was no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate court’s ruling, the dismissal of the complaint against them for lack of merit, and the award of damages on their counterclaim. The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication.10 publication. 10 Regrettably, these requisites have not been complied with in the case at bar.
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In ruling for private respondent, the Court of Appeals found that Borjal’s column writings sufficiently identified i dentified Wenceslao as the “conference organizer.” It cited the First National Conference on Land Transportation, the letterheads used listing different telephone numbers, the donation of P100,000.00 from Juliano Lim and the reference to the “organizer of the conference”— the very same appellation employed in all the column items —as having sufficiently established the identity of private respondent Wenceslao for
contained an article entitled “ Who Organized the NCLT ?” ?” did not even mention private respondent’s name, while th e tentative program only denominated private respondent as “Vice Chairman and Executive Director,” and not as organizer. No less than private respondent himself admitted that the FNCLT had several organizers organizers and that he was only a part of the organization, thus— thus— I would like to clarify for the record that I that I was only a part of the organization. organization. I was invited then because I was th e head of the
_______________ _______________ _________________ _______________ __ 10 Kunkle 10 Kunkle v. Cablenews-American, Cablenews-American, 42 Phil. 757 (1922). See also Corpus v. Cuaderno, Sr., Sr. , No. L-16969, 30 April 1966, 16 SCRA 807; People 807; People v. Monton, Monton, No. L-16772, 30 November 1962, 6 SCRA 801. 19 VOL. 301, JANUARY JANUARY 14, 1999 Borjal vs. Court Court of Appeals those who knew about the FNCLT who were present at its inception, and who had pledged their assistance to it. We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles written by Borjal do not identify private respondent Wenceslao as the organizer of the conference. The first of the Jaywalker articles Jaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded Star yielded nothing to indicate that private respondent was the person referred to therein. Surely, as observed by petitioners, there were millions of “heroes” of the EDSA Revolution and anyone of them could be “self “self -proclaimed” or an “organizer of seminars and conferences.” As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the “so -called First National Conference on Land Transportation whose principal organizers are not specified” (italics specified” (italics supplied).11 supplied).11 Neither did the FNCLT letterheads12 letterheads12 disclose the identity of the conference organizer since these contained only an enumeration of names where private respondent Francisco Wenceslao was described as Executive Director and Spokesman and not as a conference organizer. 13 13 The The printout14 printout 14 and and tentative program15 program 15of of the conference were devoid of any indication of Wenceslao as organizer. The printout which
11 Exh. “B.” 12 Exh. “8”; Annexes “3” and “5.” 13 Exh. “SSS“SSS-1.” 14 Annex “C,” Complaint. Complaint. 19 14 Annex 15 Annex “B,” id . 20 20 SUPREME COURT REPORTS ANNOTATED ANNOTATED Borjal vs. Court Court of Appeals technical panel of the House of Representatives Sub-Committee on Industrial Policy that took care of congressional hearings.16 hearings. 16 Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal’s Borjal’s columns. The former former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles.17 articles. 17 His His letter to the editor published in the 4 June 1989 issue of The Philippine Star even showed private respondent Wenceslao’s uncertainty— Although he used a subterfuge, I subterfuge, I was almost certain that certain that Art Borjal referred to the First National Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31 column x x x18 x18 Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from petitioner Borjal but from private respondent himself when he supplied the information through his 4 June 1989
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letter to the editor. Had private respondent not revealed that he was the “organizer” of the FNCLT referred to in the Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls. The above disquisitions notwithstanding, and on the assumption arguendo arguendo that private respondent has been sufficiently identified as the subject of Borjal’s disputed comments, we now proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo. quo. The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the disputed articles _______________ _______________ 16 TSN, 9 September 1991, p. 5. 17 Id 17 Id ., ., 18 May 1992, p. 20. 18 Annex 18 Annex “R.” 21 VOL. 301, JANUARY JANUARY 14, 1999 Borjal vs. Court Court of Appeals constitute privileged communications as to exempt the author from liability. The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged in character under the provisions of Art. 354 of The Revised Penal Code which Code which state— state— Art. 354. Requirement 354. Requirement for publicity. publicity.—Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1) A private communication made by any person to another in the performance performance of any legal, moral or social duty; and, 2) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers officers in the exercise of their functions. functions.
Respondent court explained that the writings in question did not fall under any of the exceptions described in the above-quoted article since these were neither “private communications” communications” nor “fair and true report x x x without any comments or remarks.” But this is incorrect. A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability for for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong “private communications” and “fair and true report without any comments or remarks.” Indisputably, petitioner Borjal’s questioned writings are not within the exceptions of Art. 354 of The Revised Penal 22 22 SUPREME COURT REPORTS ANNOTATED ANNOTATED Borjal vs. Court Court of Appeals 21 Code for, as correctly observed by the appellate court, they are neither private neither private communications nor communications nor fair fair and true report without any comments or remarks . However this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair since fair commentaries commentaries on matters of public interest are are likewise privileged. The rule on privileged communications had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. 19 19 As As early as 1918, in United States v. Cañete, Cañete,20 20 this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.
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The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v. Gutierrez 21 and reiterated in Santos v. Court of Appeals 22— To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing violence to the concept of privileged communications implicit in the freedom of the press. As was so well put by Justice Malcolm in Bustos: ‘Public policy, the welfare of society, and the orderly administration of government have demanded protection of public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.’ The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui generis, be
the healthy efflorescence of public debate and opinion as shining linchpins of truly democratic societies. To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.24 There is no denying that the questioned articles dealt with matters of public interest. In his testimony, private respondent spelled out the objectives of the conference thus—
________________ 19 Art. III, Sec. 4, provides: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances. 20 38 Phil. 253, 265 (1918). 21 No. L-33615, 22 April 1977, 76 SCRA 448, 454. 22 G.R. No. 45031, 21 October 1991, 203 SCRA 110, 117. 23 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals protective of public opinion. This closely adheres to the democratic theory of free speech as essential to collective self-determination and eschews the strictly libertarian view that it is protective solely of selfexpression which, in the words of Yale Sterling Professor Owen Fiss,23 makes its appeal to the individualistic ethos that so dominates our popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision exempting from liability only private communications and fair and true report without comments or remarks defeats, rather than promotes, the objective of the rule on privileged communications, sadly contriving as it does, to suppress
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23 Author of “The Irony of Free Speech,” Harvard University Press, Cambridge, Massachusetts, 1996. 24 People v. Velasco, 40 O.G., No. 18, p. 3694. 24 24 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals x x x x The principal conference objective is to come up with a draft of an Omnibus Bill that will embody a long term land transportation policy for presentation to Congress in its next regular session in July. Since last January, the National Conference on Land Transportation (NCLT), the conference secretariat, has been enlisting support from all sectors to ensure the success of the project. 25 Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public — Q:Now, in this first letter, you have attached a budget and it says here that
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in this seminar of the First National Conference on Land Transportation, you will need around One million eight hundred fifteen thousand pesos, is that right? A:That was the budget estimate, sir. Q:How do you intend as executive officer, to raise this fund of your seminar? A:Well, from sponsors such as government agencies and private sectors or organizations as well as individual transport firms and from individual delegates/participants.26 The declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An organization such as the FNCLT a iming to reinvent and reshape the transportation laws of the country and seeking to source its funds for the project from the public at large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of the qualifications and integrity of t he personalities behind it. ________________ 25 TSN, 29 July 1991, p. 15. 26 Id ., 9 September 1991, pp. 11-12. 25 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals This in effect is the strong message in New York Times v. Sullivan 27 which the appellate court failed to consider or, for that matter, to heed. It insisted that private respondent was not, properly speaking, a “public official” nor a “public figure,” which is why the defamatory imputations against him had nothing to do with his task of organizing the FNCLT. New York Times v. Sullivan was decided by the U.S. Supreme Court in the 1960s at the height of the bloody rioting in the American South over racial segregation. The then City Commissioner L.B. Sullivan of Montgomery, Alabama, sued New York Timesfor publishing a paid
political advertisement espousing racial equality and describing police atrocities committed against students inside a college campus. As commissioner having charge over police actions S ullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the basis of what he believed were libelous utterances against him. The U.S. Supreme Court speaking through Mr. Justice William J. Brennan, Jr. ruled against Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. The raison d’etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to selfcensorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt _________________
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27 376 US 254. 26 26 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals whether it could be proved or because of fear of the expense of having to prove it.28 In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also defined “public figure” in Ayers Production Pty., Ltd. v. Capulong 29 as— x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has
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become a ‘public personage.’ He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. The FNCLT was an undertaking infused with public interest. It was promoted as a joint project of the government and the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status of a public figure. But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest,
and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety. 30 There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter’s official conduct and his moral and mental fitness as Executive Director of the FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence. These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself. Concededly, petitioner Borjal may have gone overboard in the language employed describing the “organizer of the conference.” One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the “wild blue yonder” of free speech in this jurisdiction. But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, “[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.” 31 The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the
________________ 28 NAACP v. Button, 371 US 415. 29 G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861. 27 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant
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30 Rosenbloom v. Metromedia, 403 US 296. 31 See Note 27; see also Terminiello v. Chicago, 337 US 1, 4, 93 L Ed 1131, 69 S. Ct. 894. 28 28 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals
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absence of proof to the contrary, the question of privilege is immaterial. We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. 32 The onus of proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. 33 Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. 34 Malice is bad faith or bad motive.35 It is the essence of the crime of libel.36 In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question petitioner Borjal acted with malice? Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or justifiable ends . On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and reputation, but we do not consider that petitioner Borjal has violated that right in this case nor abused his press freedom. Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published _______________ 32 Lu Chu Sing v. Lu Tiong Gui , 76 Phil. 669 (1946). 33 See People v. Monton, 116 Phil. 1116 (1962). 34 See Note 20. 35 Potts v. Dies, 132 Fed 734, 735. 36 Rice v. Simmons, Del 2 Har. 309, 310. 29
VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals with the knowledge that they are false or in reckless disregard of whether they are false or not. 37 “Reckless disregard of what is false or not” means that the defendant entertains serious doubt as to the truth of the publication,38 or that he possesses a high degree of awareness of their probable falsity.39 The articles subject of the instant case can hardly be said to have been written with knowledge that these are false or in reckless disregard of what is false or not. This is not to say however that the very serious allegations of petitioner Borjal assumed by private respondent to be directed against him are true. But we nevertheless find these at least to have been based on reasonable grounds formed after the columnist conducted several personal interviews and after considering the varied documentary evidence provided him by his sources. Thus, the following are supported by documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the processing and release of the import approval and certificate of availability of a garment firm in exchange for the monetary contribution of Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in processing applications and clarifying that all applicants were treated equally;40 (b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT notwithstanding that he had previously declined the offer; 41 and, (c) that despite the fact that then President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest speakers in the conference, their names were still included in the printout of the FNCLT.42 Added to these are the __________________ 37 See Note 27. 38 St. Amant v. Thompson, 390 US 731. 39 Garrison v. Louisiana, 379 US 74. 40 Exhs. “3” and “4.”
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41 Exh. “5.” 42 Exhs. “6,” “7,” “8,” “9,” “10,” and “11.” 30 30 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB in exchange for monetary contributions to the FNCLT;43 (b) he included the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the conference notwithstanding the latter’s refusal to lend his name to and participate in the FNCLT; 44 and, (c) he used different letterheads and telephone numbers.45 Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.46 In Bulletin Publishing Corp. v. Noel 47 we held— A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community. To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is _________________ 43 TSN, 30 September 1991, p. 14. 44 Id ., 9 September 1991, p. 36.
45 Id ., 30 September 1991, p. 14. 46 Concurring Opinion of US Supreme Court Justice Rutledge in Pennekamp v. Florida, 328 US 331, 371-372. 47 G.R. No. 76565, 9 November 1988, 167 SCRA 255, 265. 31 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of “actual malice” on the part of the person making the libelous statement. At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos,48 that “the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference to comments upon his official acts.” The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no necessity to pass upon them. We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual selfdestruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute “unrestraint” in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the freedom of others. If there is freedom of the press, ought there not also be freedom from the
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31
press? It is in this sense that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, “[W]ithout x x x a lively sense of ___________________ 48 37 Phil. 731 (1918). 32 32 SUPREME COURT REPORTS ANNOTATED Borjal vs. Court of Appeals responsibility, a free press may readily become a powerful instrument of injustice.”49 Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we have always strongly maintained, as we do now, that freedom of expression is man’s birthright—constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its “defensor fidei ” in a democratic society such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.50 On petitioners’ counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages. On the contrary, private respondent acted within his rights to protect his honor from what he perceived to be malicious imputations against him. Proof and motive that the institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly established to entitle the victim to damages. The law could not have meant to impose a penalty on the right to litigate, nor should counsel’s fees be awarded every time a party wins a suit. 51 For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.52—
_______________ 49 Pennekamp v. Florida, 328 U.S. 331, 356, 365, 90 L Ed 1295, 66 S Ct 1029 (1946). 50 Mr. Justice White, concurring in Miami Herald Publishing Co. v. Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct 2831 (1974). 51 See Que v. Intermediate Appellate Court , G.R. No. 66865, 13 January 1989, 169 SCRA 137; Arenas v. Court of Appeals, G.R. No. 56524, 27 January 1989, 169 SCRA 558. 52 78 S.W. 2, 413-416 (1934). 33 VOL. 301, JANUARY 14, 1999 Borjal vs. Court of Appeals Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, a judge with his jury, we are, all of us, the subject of public discussion. The view of our court has been thus stated: ‘It is only in despotisms that one must speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on a subject touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other.’ WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and i ts Resolution of 12 September 1996 denying reconsideration are REVERSED and SET ASIDE, and the complaint for damages against petitioners is DISMISSED. Petitioners’ counterclaim for damages is likewise DISMISSED for lack of merit. No costs. SO ORDERED. Puno, Martinez and Buena, JJ., concur. Mendoza, J., In the result. Petition granted, judgment and resolution reversed and set aside. Notes.—Truth is not a defense in libel, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends. ( Alonzo vs. Court of Appeals, 241 SCRA 51 [1995])
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33
Reliance on the rule of privileged communication in a suit for malicious prosecution is misplaced, such defense being peculiar to actions for libel. ( Lao vs. Court of Appeals, 271 SCRA 477 [1997])
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G.R. No. 124491. June 1, 1999.* ROQUE VICARIO Y MENDEZ, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. Criminal Law; Libel; Definition of Libel; Elements of Libel .— Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. Same; Same; A person’s liability for libel need not, admittedly, stem from the fact that he was the original publisher of the discreditable act .—A person’s liability for libel need not, admittedly, stem from the fact that he was the original publisher of the discreditable act. The maker of a libelous republication or repetition, although not liable for the results of the primary publication, is liable for the ______________ * SECOND DIVISION. 26 26 SUPREME COURT REPORTS ANNOTATED Vicario vs. Court of Appeals consequence of a subsequent publication which he makes or participates in making. It is no justification that the defamatory matter is previously published by a third person, provided malice is present. Same; Same; To constitute malice, ill will must be personal .— In order to constitute malice, ill will must be personal. So if the ill will is engendered by one’s sense of justice or other legitimate or plausible
motive, such feeling negatives actual malice. The anger observed by trial court to have been shown by the petitioner towards private complainant at the time the former offered his testimony in defense of libel cannot be properly considered as malice, either in fact or in law, that accompanied the dissemination of an alleged libelous publication. Same; Same; The law presumes that malice is present in every defamatory imputation; Exemption is a qualifiedly privileged communication.—The law presumes that malice is present in every defamatory imputation. However, on this score, Art. 354 of the Revised Penal Code provides an exemption —x x x Paragraph 2 aforequoted refers to a qualifiedly privileged communication, the character of which is a matter of defense that may be lost by positive proof of express malice on the part of the accused. Once it is established that the article is of a privileged character, the onus of proving actual malice rests on the plaintiff who must then convince the court that the offender was prompted by malice or ill will. When this is accomplished the defense of privilege becomes unavailing. PETITION for review on certiorari of a decision of the Court of Appeals. The facts are stated in the opinion of the Court. Emerito M . Salva & Associates for petitioner. The Solicitor General for respondents. BELLOSILLO, J .: ROQUE VICARIO Y MENDEZ was charged with libel by the Provincial Prosecutor of Catarman, Northern Samar, with Judge Proceso Sidro of the Municipal Circuit Trial Court of Mondragon-San Roque, Northern Samar, as complaining 27 VOL. 308, JUNE 1, 1999 Vicario vs. Court of Appeals witness. According to the Information, the crime was committed when Vicario allegedly distributed and circulated in the vicinity of
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the Northern Samar Provincial Hospital in Catarman photocopies of page 7 of the 20 March 1992 issue of the Philippine Daily Inquirer which contained the following article1— SAMAR JUDGE WHO POCKETED BOND CHARGED WITH GRAFT OMBUDSMAN Conrado Vasquez yesterday filed with the Sandiganbayan graft charges against a Northern Samar judge who pocketed the P1,000.00 cash bond posted by a respondent in one of several cases pending in his sala. Charged was Judge Proceso Sidro of the Northern Samar municipal circuit trial court in Mondragon. Investigation showed that Sidro failed to deposit the cash bond with his clerk-of-court, and refused to return the money even after the accused who filed the bond was already acquitted in the case. Private complainant Sidro alleged that petitioner’s act greatly prejudiced his reputation as a member of the bench and caused him great distress. Petitioner Vicario on the other hand disclaimed responsibility for the distribution of the alleged l ibelous article, at the same time asserting that the libel suit against him was ill-motivated for he had filed a criminal charge for graft and corruption against Judge Sidro before the Ombudsman and an administrative complaint for dishonesty with the Supreme Court, both due to the latter’s unjustified refusal and failure to return petitioner’s cash bond of P1,000.00. After trial, the court a quo found petitioner Vicario guilty of libel and sentenced him to pay a fine of P200.00 with subsidiary imprisonment in case of insolvency. 2 The trial court justified its decision by declaring that while no evidence was pre _______________ 1 Exhs. “A” and “A -1,” Records, p. 8. 2 Decision penned by Judge Cesar R. Cinco, RTC-Br. 20, Catarman, Northern Samar. 28
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SUPREME COURT REPORTS ANNOTATED Vicario vs. Court of Appeals sented to show that Vicario distributed copies of the news article to several persons, at least he gave one photocopy to prosecution witness Amador Montes which amounted to publication, and that this act was tainted with malice as it stemmed from Vicario’s hatred, as evident from the manner his testimony was delivered, towards complaining witness Sidro.3 On 28 February 1996 respondent Court of Appeals affirmed in toto the decision of the trial court. 4 Hence, this petition for review on certiorari predicated on the following propositions5— First . The news item in question is a privileged matter and since it was published in the Philippine Daily Inquirer, a nationally circulated newspaper, without any intervention of petitioner, his act of giving a copy to a person named Amador Montes is not a libelous act; Second . Respondent court gravely erred in concluding that Amador Montes saw petitioner distributing copy of the aforesaid issue of the Philippine Daily Inquirer; Third . Respondent court gravely erred in considering the affidavitcomplaint petitioner filed with the Ombudsman which was completely immaterial and impertinent to the issue of whether or not the act of petitioner in giving a copy of the Philippine Daily Inquirer to Amador Montes where the news item was published, constitutes the crime of libel; Fourth. Respondent court seriously erred in citing authorities which are not applicable in deciding whether petitioner’s act of giving a copy of the Philippine Daily Inquirer to Amador Montes constituted the crime of libel; Fifth. Respondent court gravely erred in adopting the conclusion of the trial court that petitioner’s act of giving a copy of the Philippine Daily Inquirer to Amador Montes was motivated by his intense hatred against Judge Sidro, it being clear that such act was an insufficient and inadequate evidence of the alleged intense hatred of petitioner; and, ______________
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3 Id ., pp. 48-53. 4 Rollo, Id ., 40-47. 5 Petition, p. 16, Rollo, p. 23. 29 VOL. 308, JUNE 1, 1999 Vicario vs. Court of Appeals Sixth. Respondent court gravely erred, in the final analysis, in not acquitting petitioner on the ground of reasonable doubt. Two (2) main issues are laid before us: (a) whether the act of merely distributing a photocopy of an article in a newspaper reporting that graft charges had been filed against a judge named therein constitutes libel, and (b) whether Vicario’s act was proved beyond reasonable doubt. Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.6 Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.7 The evidence on record clearly shows that the elements above enumerated have not been satisfactorily established as to conclude that libel was committed by petitioner. Thus, we rule in his favor. For an incongruency exists between the evidence on one hand, and the findings of fact and of law by the trial court and the appellate court on the other, which we must reconcile, if not rectify. As found by the trial court, there was no evidence at all to show that petitioner was the source of the statements contained in the news item published by the Philippine Daily Inquirer. Indeed, for not only was the news item by itself bereft of this information, the records also confirmed its absence. This is why it was incorrect for the appellate court to find that “the news item was patently culled from the Affidavit-Complaint of the appellant imputing a criminal act on Judge Sidro filed with the Ombudsman (emphasis ours)” when no basis, factual or legal, exists for so ruling. To be sure,
________________ 6 Art. 353, Revised Penal Code. 7 Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 29 SCRA 61, 67. 30 30 SUPREME COURT REPORTS ANNOTATED Vicario vs. Court of Appeals the Affidavit-Complaint was merely a narration of the facts constituting the cause of action of petitioner. Its contents never appeared in the news article which spoke only of the filing by the Ombudsman with the Sandiganbayan of graft charges against Judge Sidro after its investigation of a complaint that the judge refused to return the cash bond of an accused after the latter’s acquittal in a criminal case. There is no specific reference therein to petitioner nor to his Affidavit-Complaint. Since it has not been established that he caused the publication of the subject article nor was the source thereof, it would be inappropriate to conclude that through the disputed news item he ascribed a criminal act to Judge Proceso Sidro. Parenthetically, it would have been more accurate for the appellate court to state that the news article was culled from the resolution of the Ombudsman directing the filing of a criminal charge based on the results of his investigation of a complaint leveled against the named judge. But then, if it did, it would have been left with no basis at all to hold, as in fact it did, that Vicario maliciously imputed a discreditable act to respondent judge, and there would be no more justification for the finding that the first element of libel was established. The trial court also opined that no suit arising from the publication was filed against the newspaper because what appears settled is that the item was merely a fair and true report, with no comments or remarks, of official or judicial proceedings which are not classified as confidential . Again, a perusal of the subject news item confirms this fact. Then the trial court proceeded to state that the accused (petitioner) however publicized the newspaper item because “shown by competent and relevant evidence was the giving (by Vicario) of a
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xerox copy of the publicized item to Amador Montes.” But was petitioner indeed guilty of republication of a libelous article? In his appeal, petitioner disputes the existence of the elements of publication and malice,8 arguing that inasmuch as he _______________ 8 Petition, p. 19, Rollo, p. 32. 31 VOL. 308, JUNE 1, 1999 Vicario vs. Court of Appeals was not the author or originator of the subject article in the Philippine Daily Inquirerhe could not be liable for its publication. The Court of Appeals brushed aside this proposition, declaring in the main that by having the news item machine copied and furnishing prosecution witness Montes a copy thereof, accused-appellant thereby endorsed and adopted the news item and hence was answerable therefor. We note the American citations relied upon by the appellate court to support its conclusions. However, we deem these as not authoritative, much less persuasive upon the Court, considering further that there are dissimilarities in the facts between the cited cases and this case before us. Contrary to the perception of the appellate court, there was no evidence at all offered to show that petitioner himself photocopied the article. Nor was evidence sufficiently adduced to prove that he himself distributed photocopies of the news item to so many people, prompting the trial court to rule as hearsay the testimony on the matter by Judge Sidro and his protégé Amador Montes. This puts to doubt whether petitioner himself gave a copy of the publication to Montes. Notably, Montes was not even named by the judge as one of the original witnesses listed in the complaint he filed for preliminary investigation. The witness named therein was a certain Hermito Pahimnayan who was never presented in court despite his having executed an affidavit which was attached to Sidro’s criminal complaint in the Municipal Trial Court. This affidavit described not the incident of 22 May 1992 on which the charge for libel was based but one which occurred sometime in 1991 or a year earlier during
which Vicario was said to have shown Pahimnayan a copy of his administrative complaint against Judge Sidro. Moreover, in the affidavit executed by Judge Sidro which he also attached to his complaint, he declared that it was Romeo Pinangay, his court messenger, who gave him a copy of Philippine Daily Inquirer and informed him that Roque Vicario distributed clippings of the news item to everyone in the premises of the hospital. Amador Montes was never mentioned in this affidavit; much less was he made to execute any affidavit to support the criminal complaint of Judge Sidro. This 31 much he admitted on the wit32 32 SUPREME COURT REPORTS ANNOTATED Vicario vs. Court of Appeals ness stand.9 Other than the testimony of Montes himself, an acknowledged subaltern of the judge, no one else was presented to establish the fact of distribution by petitioner of copies of the alleged offensive news article. The prosecution could have offered other witnesses with more objective dispositions than Montes, but it did not do so. With these doubts subsisting, it was therefore reversible error of the courts below to conclude that petitioner was liable for the republication of the news article alleged to be libelous. A person’s liability for libel need not, admittedly, stem from the fact that he was the original publisher of the discreditable act. The maker of a libelous republication or repetition, although not liable for the results of the primary publication, is liable for the consequence of a subsequent publication which he makes or participates in making. It is no justification that the defamatory matter is previously published by a third person,10 provided malice is present. Granting arguendo the correctness of the finding by the lower courts that petitioner did at least distribute a machine copy of the article to one Amador Montes, an acknowledged “batos” 11 of Judge Sidro, was there sufficient basis to ascribe malice in his act? The trial court rationalized that “the accused has all the motivations to do so (i .e., distribute a copy to Montes) because of his intense hatred against complainant, manifested even by the very manner he gave testimony, who would not return to him an amount that he had to borrow from a loan shark (there is nothing to show that the
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same was returned to the accused). x x x x Even so, such actuation x x x in disseminating through Montes is removed from the protection accorded to a privileged communication under the foregoing circumstances.” This is flawed reasoning, a veritable non sequitur. It is established
justice frustrated by the continued refusal of Judge Sidro to return to him his cash bond, but also at being criminally sued in court for an act which he stoutly believed was not imputable to him. This state of mind cannot be appropriately considered malice and applied retroactively to the time of the distribution of the alleged libelous article unless clear and convincing evidence shows otherwise; and, there is no such contrary evidence in the case at bar. Since there is no indication about the cause of such display of “intense hatred” by the petitioner for Judge Sidro, the Court will grant him the benefit of the doubt under the “equipoise doctrine.”13
________________ 9 TSN, 4 August 1993, p. 18. 10 Reyes, Leonardo P., Fundamentals of Libel Law, 1986, pp. 14-15, citing Sourbier v. Brown, 123 N.E. 802, 188 Ind. 544; Coffey v. Midland Broadcasting Co., D.C. Mo. 8 F Supp. 889; Wayne Works v. Hicks Body Co., 55 N.E. 2d 382, 115 Ind. 11 “Batos” is the local Waray term for “ factotum.” 33 VOL. 308, JUNE 1, 1999 Vicario vs. Court of Appeals doctrine that the malice that attends the dissemination of the article alleged to be libelous must attend the distribution itself. It cannot be merely a resentment against a person manifested unconnectedly several months earlier or one displayed at a much later date, as what happened in this case. A fine-tooth comb dissection of the testimony of prosecution witness Amador Montes reveals none that would indicate, much less hint at, the attitude and mental frame of Vicario at the time he allegedly handed over the photocopy of the news item in question to Montes. If at all, as can be gathered from the testimonial narration, Vicario’s attitude could only be described as noncommittal. In order to constitute malice, ill will must be personal. So if the ill will is engendered by one’s sense of justice or other legitimate or plausible motive, such feeling negatives actual malice.12 The anger observed by trial court to have been shown by the petitioner towards private complainant at the time the former offered his testimony in defense of libel cannot be properly considered as malice, either in fact or in law, that accompanied the dissemination of an alleged libelous publication. For the anger discerned of petitioner on the witness stand could also mean anger not only borne out of a sense of
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12 Aquino, Ramon C., The Revised Penal Code, Vol. III, Bk. II, 1997 Ed., citing People v. de los Reyes, Jr., 47 OG 3569. 13 The “equipoise doctrine” is the rule which states that when the evidence of the prosecution and the defense are so evenly bal34 34 SUPREME COURT REPORTS ANNOTATED Vicario vs. Court of Appeals There was nothing defamatory in the news item. This much was found by the trial court itself, noting that the published article was merely a factual report about the filing by the Ombudsman of the charge of corruption against the judge with the Sandiganbayan. Of course, it does not necessarily mean that if the news article complained of is not libelous because it is a privileged matter, he who repeats the publication is likewise free from accountability for the reutterance. We recognize that a person’s liability for libel d oes not necessarily proceed from the fact that he was the original publisher of the discreditable act. The maker of a libelous republication or repetition, although not liable for the results of the primary publication, is liable for the consequences of a subsequent publication which he makes or participates in making so long as the elements of libel are satisfied. But in every case malice must be present, something which has not been shown in the case at bar.
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The law presumes that malice is present in every defamatory imputation. However, on this score, Art. 354 of the Revised Penal Code provides an exemption— Art. 354. Requirement for publicity.—Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases x x x x 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions (emphasis supplied ).
WHEREFORE, this petition is GRANTED. The decision of the Regional Trial Court of Catarman, Northern Samar, dated 11 March 1993 finding petitioner guilty of libel, and that of the Court of Appeals dated 28 February 1996 affirming his conviction are REVERSED and SET ASIDE. Petitioner ROQUE VICARIO Y MENDEZ is ACQUITTED of the crime charged. SO ORDERED. Puno, Mendoza, Quisumbing and Buena, JJ ., concur. Petition granted, judgment reversed and set aside. Petitioner acquitted . Note.—Petitioner was not able to establish satisfactorily that the issuance of the letter and its offending paragraph was motivated by malice. ( Fortich vs. Court of Appeals, 268 SCRA 152 [1997])
_______________ anced the appreciation of such evidence calls for the tilting of the scales in favor of the accused. Thus, the evidence for the prosecution must be heavier to overcome the presumption of innocence of the accused. The constitutional basis of the rule is the Bill of Rights which finds expression in Sec. 1, par. (a), Rule 115 of the 1985 Rules on Criminal Procedure as amended (see People v. Argawamon, 215 SCRA 652; People v. Ramilla, G.R. No. 101435, 8 November 1993, 227 SCRA 583; People v. Dela Iglesia, G.R. Nos. 110991-92, 24 Feb. 1995, 241 SCRA 719). 35 VOL. 308, JUNE 1, 1999 Vicario vs. Court of Appeals Paragraph 2 aforequoted refers to a qualifiedly privileged communication, the character of which is a matter of defense that may be lost by positive proof of express malice on the part of the accused. Once it is established that the article is of a privileged character, the onus of proving actual malice rests on the plaintiff who must then convince the court that the offender was prompted by malice or ill will. When this is accomplished the defense of privilege becomes unavailing.14 Since the prosecution failed to establish express malice on the part of petitioner by positive proof, its cause perforce must fail.
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Reyes vs. People, we ruled that the expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of
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SUPREME COURT REPORTS ANNOTATED Pader vs. People
profanity. We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger. Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter. Being a candidate running for vice mayor, occasional gestures and words of disapproval or dislike of his person are not uncommon. PETITION for review on certiorari of a decision of the Court of Appeals. The facts are stated in the resolution of the Court. Elmer G. Train for petitioner. The Solicitor General for respondent. G.R. No. 139157. February 8, 2000. *
ROGELIO PADER, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Criminal Law; Defamation; Doctrine that guides the court in resolving the issue of whether petitioner is guilty of slight or serious oral defamation . — The issue is whether petitioner is guilty of slight or serious oral defamation. In resolving the issue, we are guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time. Same; Same; The expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure .— In
RESOLUTION PARDO, J .: What is before the Court is an appeal via certiorari from a decision1 of the Court of Appeals affirming that of the Regional Trial Court, Branch 1, Balanga, Bataan 2affirming petitioner’s conviction of grave oral defamation by the Municipal Trial Court, Bagac, Bataan.3 The facts may be summarized as follows: On April 20, 1995, at about 8:00 p.m., Atty. Benjamin C. Escolango was conversing with his political leaders at the terrace of his house at Morong, Bataan when petitioner appeared at the gate and shouted “putang ina mo Atty. Escolango. Napakawalanghiya mo!” The latter was dumb -founded and embarrassed. At that time, Atty. Escolango was a candidate for vice mayor of Morong, Bataan in the elections of May 8, 1995.
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1 In CA-G.R. CR No. 21710, promulgated on May 3, 1999, Justice Romeo A. Brawner, ponente, and concurred in by Justices Angelina Sandoval-Gutierrez and Martin S. Villarama, Jr. 2 In Crim. Case No. 6726, Judge Benjamin T. Vianzon. 3 In Crim. Case No. 2339, Judge Antonio C. Quintos.
“After considering the evidence adduced by the parties together with their respective memorandum, this Court finds no re-
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4 Rollo, p. 23. 5 Rollo, pp. 23-25. VOL. 325, FEBRUARY 8, 2000 119 6 The imposition of an indeterminate senten ce where the Pader vs. People penalty actually imposed is not more than one year On June 16, 1995 Atty. Escolango filed with the Municipal Trial Court, Bagac, Bataan a imprisonment is wrong [See Humilde vs. Pablo, 190 Phil. 621, complaint against petitioner for grave oral defamation, to which petitioner pleaded “not 623 (1981) and People vs. Arellano, 68 Phil. 678 (1939); See guilty.”4 After due trial, on October 30, 1997 the Municipal Circuit Trial Court, Bagac, Bataan rendered also R.C. Aquino, Revised Penal Code, 1987 Edition, Vol. 1, decision convicting petitioner of grave oral defamation.5 The dispositive portion reads: pp. 726-727]. “Accordingly and in view of all the foregoing, the court finds 7 Rollo, p. 25. accused Rogelio Pader guilty beyond reasonable doubt of the 120 crime of Grave Oral Defamation as defined and penalized 120 SUPREME COURT REPORTS ANNOTATED under Article 358 of the Revised Penal Code and considering Pader vs. People the extenuating circumstances of drunkenness hereby sentences versible error 8 on the penalty imposed as well as the moral him to an imprisonment of one (1) month and one (1) day to damages awarded by the Municipal Circuit Trial Court of one (1) year imprison-ment6 and to indemnify the private Bagac-Morong, Bataan and therefore affirms the same in toto. offended party in the amount of P20,000.00 as moral damages, “x x x considering his social standing and professional stature. “SO ORDERED. “SO ORDERED. “Given this 4th day of March 1998 at Balanga, Bataan. “Bagac -Morong, Bataan “October 30, 1997. “BENJAMIN T. VIANZON “Judge” 9 “ANTONIO C. QUINTOS “Acting Mun. Circuit Trial Judge”7 Elevated to the Court of Appeals by petition for review, on May 3, 1999 the Court of Appeals 119
On appeal, on March 4, 1998, the Regional Trial Court affirmed the decision of the Municipal Trial Court in toto. The decretal portion of the decision reads:
affirmed the Regional Trial Court’s decision but with modification as to the penalty imposed, as follows:
“WHEREFORE, in view of the foregoing, the judgment appealed from is hereby affirmed but with the modification that 83
In Reyes vs. People,14 we ruled that the expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of profanity. We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger. Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter. Being a candidate running for vice mayor, occasional gestures and words of disapproval or dislike of his person are not uncommon.
the accused-appellant, Rogelio Pader is sentenced to serve a prison term of four (4) months and one (1) day of arresto mayor. “SO ORDERED. “ROMEO A. BRAWNER “Associate Justice” 10 Hence, this petition.11 The issue is whether petitioner is guilty of slight or serious oral defamation. In resolving the issue, we are guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary
_____________ 12 Victorio vs. Court of Appeals, 173 SCRA 645 [1989]; Larobis vs. Court of Appeals, 220 SCRA 639[1993]; Balite vs. People, 18 SCRA 280 [1996]; Padilla, Ambrosio, Revised Penal Code Annotated, 1990 edition, Vol. 4, pp. 357-358. 13 Municipal Trial Court Decision in Criminal Case No. 2339, Rollo, pp. 23-25; Regional Trial Court Decision in Criminal Case No. 6726, Rollo, pp. 26-28. 14 137 Phil. 112, 120 [1969].
_______________ 8 Regrettably, Regional Trial Court Judge Vianzon failed to note the error in the imposition of an indeterminate penalty and the award of moral damages, not knowing any better. Both judges should take refresher lessons on the application of the penalties and the Indeterminate Sentence Law. 9 Regional Trial Court Decision, Rollo, pp. 26-28. 10 Court of Appeals’ Decision, Rollo, p p. 30-35. 11 Filed on July 20, 1999, Rollo, pp. 8-20.
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VOL. 325, FEBRUARY 8, 2000 Pader vs. People meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time.12 Unquestionably, the words uttered were defamatory. Considering, however, the factual backdrop of the case, the ora l defamation was only slight. The trial court, in arriving at its decision, considered that the defamation was deliberately done to destroy Atty. Escolango’s reputation since the parties were political opponents. We do not agree. Somehow, the trial court failed to appreciate the fact that the parties were also neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the fact that petitioner’s anger was instigated by what Atty. Escolango did when petitioner’s father died.13 In which case, the oral d efamation was not of serious or insulting nature.
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In similar fashion, the trial court erred in awarding moral damages without proof of suffering.15 Accordingly, petitioner may be convicted only of slight oral defamation defined and penalized under Article 358, Revised Penal Code, prescribing the penalty of arresto mayor or a fine n ot exceeding 200 pesos. WHEREFORE, we resolve to DENY the petition. However, we set aside the decision of the Court of Appeals in CA-G.R. CR No. 21710 and find petitioner Rogelio Pader guilty only of slight oral defamation. We impose on him a fine of P200.00 and costs. SO ORDERED. Puno, Kapunan and Ynares-Santiago, JJ ., concur. Davide, Jr. (C.J., Chairman), It should not be denial of the petition, but a partial grant thereof. Petition denied but judgment of Court of Appeals in CA-G.R. CR No. 21710 set aside . Petitioner guilty only of slight oral defamation with a fine of P200.00 .
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G.R. No. 157643.
March 28, 2008.*
CRISTINELLI S. FERMIN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Criminal Law; Libel; Proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication. — In U.S. v. Taylor , the accused was indicted under Section 6 of Act No. 277 which provides that: “Every author, editor or propri etor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of said book or number of each newspaper or serial as fully as if he were the author of the same.” However, proof adduced during the trial showed that accused was the manager of the publication without the corresponding evidence that, as such, he was directly responsible for the writing, editing, or publishing of the matter contained in the 85
said libelous article. In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of the Revised Penal Code which includes the verb “publicar.” Thus, it was held that Article 360 includes not only the author or the person who causes the libelous matter to be published, but also the person who prints or publishes it. Based on these cases, therefore, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication, as petitioner and Tugas are in this case. Same; Same; Whether or not a “publisher” who is also the “president” and “chairperson” of a publication had actual knowledge and participation in the publication of a libelous article, she can be convicted for the resulting libel, having furnished the means of carrying on the publication of the article purportedly prepared by the members of the reportorial team, who were employees under her control and supervision. — It is worthy to note that petitioner was not only the “publisher,” as shown by the editorial box of Gossip Tabloid , but also its “president” and “chairperson” as she herself admitted on the witness stand. She also testified that she handled the business _______________ * THIRD DIVISION. 133
VOL. 550, MARCH 28, 2008 Fermin vs. People
aspect of the publication, and assigns editors to take charge of everything. Obviously, petitioner had full control over the publication of articles in the said tabloid. Her excuse of lack of knowledge, consent, or participation in the release of the libelous article fails to persuade. Following our ruling in Ocampo, petitioner’s criminal guilt should be affirmed, whether or not she had actual knowledge and participation, having furnished the means of carrying on the publication of the article purportedly prepared by the members of the Gossip Reportorial Team, who were employees under her control and supervision. Same; Same; Judgments; Statutory Construction; Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven, CA-G.R. No. 13561, 6 November 1995, which requires specific knowledge, participation, and approval on the part of the publisher to be liable for the publication of a libelous article, would be reading into the law an additional requirement that was not intended by it. — Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and Soliven such that Maximo V. Soliven, as publisher of The Philippine Star , was acquitted by the appellate court in view of the lack of evidence that he knew and approved the article written by Luis D. Beltran about then President Corazon C. Aquino in the newspaper’s October 12, 1987 issue. Petitioner submits that People v. Beltran and Soliven serves as a guide to this Court regarding the criminal liability of the publisher of the newspaper where a libelous article is published. Put differently, it appears that petitioner wants this Court to follow 133 the CA decision and adopt it as judicial precedent under the principle of stare decisis. The doctrine of stare decisis, embodied in Article 8 of the Civil Code, is enunciated, thus: 86
The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. (Emphasis supplied) Unfortunately, the Beltran decision attained finalit y at the level of the CA. Thus, if the CA seemingly made a new pronouncement regarding the criminal liability of a publisher under Article 360 of the Revised Penal Code, that ruling cannot bind this Court unless we purposely adopt the same. Be that as it may, we find no 134 134 SUPREME COURT REPORTS ANNOTATED Fermin vs. People compelling reason to revisit U.S. v. Ocampo; to modify it would amount to judicial legislation. Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven, which requires specific knowledge, participation, and approval on the part of the publisher to be liable for the publication of a libelous article, would be reading into the law an additional requirement that was not intended by it. Same; Same; Words and Phrases; A libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. — A libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary; or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense. To say that the article, in its entirety, is not libelous disturbs one’s sensibilities; it would certainly prick one’s conscience. There is evident imputation of the crime of malversation (that the complainants converted for their personal use the money paid to them by fellow Filipinos in America in their business of distributing high-end cookware); of vices or defects for being fugitives from the law (that complainants and their family returned to the Philippines to evade prosecution in America); and of being a wastrel (that Annabelle Rama Gutierrez lost the earnings from their business through irresponsible gambling in casinos). The attribution was made publicly, considering that Gossip Tabloid had a nationwide circulation. The victims were identified and identifiable. More importantly, the article reeks of malice, as it tends to cause the dishonor, discredit, or contempt of the complainants. Same; Same; In the instant case, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against the complainants during the electoral campaign. — It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against 135 VOL. 550, MARCH 28, 2008 135 Fermin vs. People 87
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign. Same; Same; Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism does not automatically fall within the ambit of constitutionally protected speech — if the utterances are false, malicious or unrelated to a public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise Neither can petitioner take to criminal and civil liability. — refuge in the constitutional guarantee of freedom of speech and of the press. Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism does not automaticall y fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. While complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and commentators such as petitioner, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious comments, whether in broadcast media or in print, about their personal lives.
Same; Same; Administrative Circular No. 08-2008 (Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases); While Administrative Circular No. 08-2008 expresses a preference for the imposition of a fine rather than imprisonment, it likewise allows the court, in the exercise of sound discretion, the option to impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. — With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008, the Court issued Administrative Circular No. 08-2008, entitled Guidelines in 136 136 SUPREME COURT REPORTS ANNOTATED Fermin vs. People the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a preference for the imposition of a fine rather than imprisonment, given the circumstances attendant in the cases cited therein in which only a fine was imposed by this Court on those convicted of libel. It also states that, if the penalty imposed is merely a fine but the convict is unable to pay the same, the Revised Penal Code provisions on subsidiary imprisonment should apply. However, the Circular likewise allows the court, in the exercise of sound discretion, the option to impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
88
The facts are stated in the opinion of the Court. Reyes, Francisco and Associates; Eufracio Segundo C. Pagunuran, Alfredo A. Dy and Louis P. Acosta for petitioner. The Solicitor General for respondent. NACHURA, J.: Before us is a petition 1 for review on certiorari, under Rule 45 of the Rules of Court, of the Decision2 dated September 3, 2002 and the Resolution 3 dated March 24, 2003 of the Court of Appeals (CA) in CA- G.R. CR No. 20890 entitled “ People of the Philippines v. Cristenelli S. Fermin and Bogs C. Tugas.” On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2) criminal informations for
“MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DOON SI ANNABELLE” “IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT DIN ANG ASUNTO NILA DU’N, BUKOD PA SA NAPAKARAMING PINOY NA HUMAHANTING SA KANILA MAS MALAKING PROBLEMA ANG KAILANGAN NIYANG HARAPIN SA STATES _______________ DAHIL SA PERANG NADISPALKO NILA, NAGHAHANAP LANG NG SAKIT NG KATAWAN 1 Rollo, pp. 3-43. SI ANNABELLE KUNG SA STATES NGA NIYA 2 Penned by Associate Justice Salvador J. Valdez, Jr., with MAIISIPANG PUMUNTA NGAYON PARA LANG Associate Justices Mercedes Gozo-Dadole and Amelita G. TAKASAN NIYA SI LIGAYA SANTOS AT ANG Tolentino, concurring; id., at pp. 45-60. SINTENSIYA SA KANYA” 3 Id., at pp. 62-67. when in truth and in fact, the accused very well knew that the 137 VOL. 550, MARCH 28, 2008 137 same are entirely false and untrue but were publicly made for no other purpose than to expose said ANNABELLE RAMA Fermin vs. People libel4 were filed against Cristinelli 5 S. Fermin and Bogs C. Tugas before the Regional Trial GUTIERREZ to humiliation and disgrace, as it depicts her to Court (RTC) of Quezon City, Branch 218. Except for the name of the complainant, 6 the be a fugitive from informations uniformly read — “That on or about the 14th day o f June, 1995 in Quezon City, Philippines, the above-named accused CRISTENELLI SALAZAR FERMIN, publisher, and BOGS C. TUGAS, Editor-in-Chief of Gossip Tabloid with offices located at 68-A Magnolia Tulip St., Roxas District, Quezon City, and circulated in Quezon City and other parts of Metro Manila and the whole country, conspiring together, confederating with and mutually helping each other, publicly and acting with malice, did then and there willfully, unlawfully and feloniously print and circulate in the headline and lead story of the said GOSSIP TABLOID issue of June 14, 1995 the following material, to wit:
_______________ 4 Both entitled “ People of the Philippines v. Cristenelli S. Fermin and Bogs C. Tugas” and docketed as Criminal Cases Nos. Q-95-62823 and Q-95-62824. 5 Also referred in the records as Cristenelli. 6 Annabelle Rama Gutierrez in one, and Eduardo (Eddie) Gutierrez in the other. 138
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Fermin vs. People justice and a swindler, thereb y causing dishonor, discredit and contempt upon the person of the offended party, to the damage and prejudice of the said ANNABELLE RAMA GUTIERREZ. CONTRARY TO LAW.”7 Upon arraignment, petitioner and co- accused Bogs C. Tugas (Tugas) both pleaded “not guilty.” Thereafter, a joint trial ensued. After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision 8dated January 27, 1997, found petitioner and Tugas guilty of libel. The dispositive portion of the Joint Decision reads —
“WHEREFORE, prosecution having established the guilt of the accused, judgment is hereby rendered finding CRISTENELLI S. FERMIN and BOGS C. TUGAS GUILTY beyond reasonable doubt, of libel, punishable under Art. 355 of the Revised Penal Code and sentences them to an indeterminate penalty of three (3) months and eleven (11) days of arresto mayor , as minimum, to one (1) year, eight (8) months and twenty-one (21) days of prision correccional , as maximum, for each case. Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to pay jointly and solidarily: a) moral damages of: 1. P500,000.00 to Annabelle Rama in Criminal Case No. Q-95-62823; and 2. P500,000.00 to Eddie Gutierrez in Criminal Case No. Q-95-62824; b) attorney’s fees of P50,000.00. SO ORDERED.”9 Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its Decision dated September 3, 2002, af-
_______________
7 Records, pp. 2-3. 8 Id., at pp. 181-194. 9 Id., at pp. 193-194. 139
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firmed the conviction of petitioner, but acquitted Tugas on account of non-participation in the publication of the libelous article. The fallo of the Decision reads —
“WHEREFORE, judgment is hereby rendered as follows: 1. The appealed decision as against the accusedappellant BOGS C. TUGAS is REVERSED and SET ASIDE, and another is entered ACQUITTING him of the crime charged and ABSOLVING him from any civil liability; and 2. The same appealed decision as against accusedappellant CRISTENELLI S. FERMIN is AFFIRMED, with the MODIFICATION that the award of moral damages is REDUCED to P300,000.00 for EACH offended party, and the award of attorney’s fees is DELETED. Costs against the appellant FERMIN. SO ORDERED.”10 The CA denied petitioner’s motion for reconsideration for lack of merit in the Resolution dated March 24, 2003. Hence, this petition, raising the following arguments:
I. THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO AND SANTIAGO, U.S. VS. MADRIGAL AND U.S. VS. SANTOS AND THE HOLDING IN U.S. VS. OCAMPO AS CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS. BELTRAN AND SOLIVEN REQUIRING KNOWLEDGE, PARTICIPATION AND COMPLICITY BY THE PUBLISHER IN THE PREPARATION AND APPROVAL
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OF THE LIBELOUS ARTICLE TO SUSTAIN THE LATTER’S CONVICTION FOR LIBEL ARE APPLICABLE IN THE PRESENT CASE. II. ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A PUBLISHER LIABLE FOR LIBEL TO THE SAME EXTENT AS IF HE WERE THE AUTHOR THEREOF MERELY CREATES A DIS _______________ 10 Rollo, pp. 59-60. 140
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SUPREME COURT REPORTS ANNOTATED Fermin vs. People People PUTABLE PRESUMPTION WHICH MAY BE REBUTTED BY CONTRARY EVIDENCE. III. THE QUESTIONED ARTICLE IS NOT LIBELOUS. IV. THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE OF THE FREEDOM OF THE PRESS AND IS WITHIN THE REALM OF FAIR AND HONEST COMMENT.11 Being interrelated, we shall discuss the first a nd the second issues jointly, then the third and the fourth issues together. Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal Code, it is mandatory that the publisher knowingly participated in or consented to the preparation and publication of the libelous article. This principle is, allegedly, based on our ruling in U.S. v. Taylor, 12 People v. Topacio and Santiago, 13U.S. v. Madrigal, 14 U.S. v. Abad Santos,15 and U.S. v. Ocampo,16 as purportedly clarified in People v. Beltran and Soliven.17 She submits that these cases were applied by the CA in acquitting her co-a ccused Tugas, and being similarly situated with him, she is also entitled to an acquittal. She claims that she had adduced ample evidence to show that she had no hand in the preparation and publication of the
offending article, nor in the review, e diting, examination, and approval of the articles published in Gossip Tabloid .
_______________ 11 Id., at pp. 7-8. 12 28 Phil. 599 (1914). 13 59 Phil. 356 (1934). 14 27 Phil. 347 (1914). 15 36 Phil. 243 (1917). 16 18 Phil. 1 (1910). 17 CA-G.R. CR No. 13561, November 6, 1995. 141
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The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact, damning. Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case. U.S. v. Madrigal pertains to a criminal prosecution under Section 30 of Act No. 1519 for fraudulently representing the weight or measure of anything to be greater or less than it is, whereas U.S. v. Abad Santos refers to criminal responsibility under the Internal Revenue Law (Act. No. 2339). The other cases are more in point, but they serve to reinforce the conviction of, rather than absolve, petitioner. In U.S. v. Taylor , the accused was indicted under Section 6 of Act No. 277 which provides that: “Every author, editor or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of said book or number of each newspaper or serial as fully as if he were the author of the same.” However, proof adduced during the trial showed that accused was the manager of the publication without the corresponding evidence that, as such, he was directly responsible for the writing, editing, or publ publishing ishing of the matter contained in the said libelous article. 18 In People v. Topacio and Santiago , reference was made to the Spanish text of Article 360 of the Revised Penal Code which includes the verb “ publicar “ publicar .” .” Thus, it was held that Article 360 includes not only the author or the person who causes the libelous matter to be published, but also the person who prints or publishes it. Based on these cases, therefore, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication, as petitioner and Tugas are in this case.
91
_______________ 18 Supra note 12, at pp. 604-605. (Emphasis supplied.)
“One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or employ-
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The rationale for the criminal culpability of those persons enumerated in Article 360 of the Revised Penal Code 19 was enunciated in U.S. v. Ocampo,20 to wit:
“According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any connection with its publication are liable as publishers.” xxxx In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783): “The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication. “The manager and proprietor of a newspaper, we think ought to be held prima faciecriminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, x x x
_______________ 19 Art. 360. Persons responsible. — Any person who — Any shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper , magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. x x x (Emphasis supplied) 20 Supra note 16, at pp. 50-52. 143
VOL. 550, MARCH 28, 2008 143 Fermin vs. People People ees whom he selects and controls may be said to cause to be published what actually appears, and should be held responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the publisher; x x x. “We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution against such such proprietor or or manager.”
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In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it was pointed out to him and that an apology apolog y and retraction were afterwards published in the same paper, gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said: “It is the duty of the proprietor of a public paper, whi ch may be used for the publication of improper communications, to use reasonable caution in the conduct of his business that no libels be published.” (Wharton’s Criminal Law, secs. 1627, 1649; 1 Bishop’s Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.) The above doctrine is also the doctrine established by the English courts. In the case of Rex vs. Walter (3 (3 Esp., 21) Lord Kenyon said that he was “clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for misconduct in the management of the paper.” This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster. Lofft, an English author, in his work on Libel and Slander, said: “An information for libel will lie against the publisher of a paper, although he did not know of its being put into the paper and stopped the sale as soon as he discovered it.” In the case of People vs. Clay (86 Ill., 147) the court held that – 144
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Fermin vs. People People “A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it.” It is worthy to note that petitioner was not only the “publisher,” as shown by the editorial box of Gossip Tabloid ,21 but also its “president” and “chairperson” as she herself admitted on the witness stand.22 She also testified that she handled the business aspect of the publication, and assigns editors to take charge of everything. 23Obviously, petitioner had full control over the publication of articles in the said tabloid. Her excuse of lack of knowledge, consent, or participation in the release of the libelous article fails to persuade. Following our ruling in Ocampo, petitioner’s Ocampo, petitioner’s criminal guilt should be affirmed, whether or not she had actual knowledge and participation, having furnished the means of carrying on the publication of the article purportedly prepared by the members of the Gossip Reportorial Team, who were employees under her control and supervision. Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and Soliven such that Maximo V. Soliven, as publisher of The Philippine Star , was acquitted by the appellate court in view of the lack of evidence that he knew and approved the article written by Luis D. Beltran about then President Corazon C. Aquino in the newspaper’s October 12, 1987 issue. Petitioner submits that People v. Beltran and Soliven serves as a guide to this Court regarding the criminal liability of the publisher of the newspaper where a libelous article is published. Put differently, it appears that petitioner wants this Court to follow the CA decision and adopt it as judicial precedent under the principle of stare decisis.
_______________ 21 Exhibit “A-8”; Records, p. 60. 22 TSN, May 2, 1996, p. 61. 23 Id., at p. 29. 145
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The doctrine of stare decisis, embodied in Article 8 24 of the Civil Code, is enunciated, thus:
“The doctrine of stare stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in
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subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.” 25 (Emphasis supplied) Unfortunately, the Beltran decision attained finality at the level of the CA. Thus, if the CA seemingly made a new pronouncement regarding the criminal liability of a publisher under Article 360 of the Revised Penal Code, that ruling cannot bind this Court unless we purposely adopt the same. Be that as it may, we find no compelling reason to revisit U.S. v. Ocampo; to modify it would amount to judicial legislation. Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven,which requires specific knowledge, participation, and approval on the part of the publisher to be liable for the publication of a libelous article, would be reading into the law an additional requirement that was was not intended by it. it. In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot feign lack of participation in the publication of the questioned article as was evident from his and petitioner’s Joint Counter-Affidavit,26 and as gleaned from his testimony before the trial court, to wit:
A:
Yes, that is correct.
ATTY. ALENTAJAN: That is all for the witness, your Honor. COURT: Do we get it right from you, if you were acting as you were, you will will not allow the said publication of this same article or same stories? A: If I were, if I was was physically present, honestly I will because because if you can can see the article, your Honor, it is according to our source, it is not a direct comment. COURT: So whether you are are there or not, [the] same article leading to them ( sic) will still find its way to come out? A:
Yes, your honor. 27
_______________ 24 “Judicial decisions applying or interpreting the laws or the constitution shall form part of the legal system of the Philippines.” 25 Castillo v. Sandiganbayan , 427 Phil. 785, 793; 377 SCRA 509, 515 (2002). 26 Records, p. 17.
Tugas’ testimony, in fact, confirms his actual participation in the preparation and publication of the controversial article and his approval thereof as it was written. Moreover, his alibi, which was considered meritorious by the CA, that he was confined at the Mother of Perpetual Help Clinic in Angeles City, is unavailing, in view of the testimony of his attending physician that Tugas’ medical condition did not prevent him from performin g his work, thus —
Q:
How would you describe the condition condition of the patient on June 13, 1995?
A:
He is in stable condition.
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WITNESS: As editor-in-chief, I have have no participation in the writing of the questioned article and my only participation in the publication is the handling of the physical lay-outing, indication and allocation of type-size of the body of t he article, before the same was printed and and published in GOSSIP Tabloid. Q: You do not deny the statements in this publication publication as executed by you in the counter-affidavit and sworn in before the City Prosecutor, is this correct?
_______________ 27 Cross-examination of Bogs Tugas; TSN, March 11, 1996, pp. 36-37. 147
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Q: You said he was in severe pain, from your opinion, was that condition sufficient to enable him to work? A:
Yes, in my opinion. 28
Q: You said your impression of the patient was urethral colic and this was caused by spasm? A:
A:
No, sir.
Q: Now, prior to 7:10 o’clock in the morning of June 13, 1995, you did not see Mr. Bogs Tugas? A:
I saw him, he was admitted at 7:00 o’clock but I saw him before.
Q:
How long before 7:10 were you able to see him?
Yes, sir. A:
That is about 2 hours.
Q: When you say spasm, it is not sustained, it comes every now and then and [intermittently], it is not sustained?
Q:
About 5:00 o’clock in the morning?
A:
Yes, sir.
A:
Yes, sir.
Q:
Now you said he was in stable condition?
_______________
A:
Yes, sir.
28 Direct examination of Dr. Richard U. Velez; TSN, March 19, 1996, pp. 7-8.
Q:
That means that his ailment is not life-threatening?
148
A:
Correct.
Q:
In fact, visitors were allowed to see him?
A:
Yes, sir.
Q:
Who was his companion when you saw him?
Q:
He can also write?
A:
He was boarding in my place.
A:
Yes, sir.
Q:
So, you brought him to the hospital?
Q:
He was allowed to [receive] friends?
A:
Both of us went to the hospital.
A:
Yes, sir.
Q:
Which boarding house are you referring [to]? In Angeles City?
A:
Yes, sir.
Q: According to you, he was able to work also, he is not totally incapacitated in performing certain chores in the hospital room?
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Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-inchief of a newspaper tabloid? A:
Yes, sir.
Q:
And some of his work is done in your boarding house?
A:
I do not know about it.
Q: How did you know that he is working on his paper works in Quezon City? Did you see him do that?
MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DU’N SI ANNABELLE! On the first page of the same issue of Gossip Tabloid , written in smaller but bold letters, are: HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN NIYANG ASUNTONG INIWAN DU’N NOON PA, NAKAPAG-ABROAD MAN SIYA, E, PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN DU’N NG NGA KABABAYAN NATING NILOKO NIYA, IN ONE WAY OR ANOTHER?... NAAALALA PA BA NINYO ‘YUNG M GA MAMAHALING KALDERO NA IBINEBENTA NILA NOON SA AMERIKA, DU’N SILA NAGKAPROBLEMA, MILYON-MILYON ANG INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA PILIPINAS NOON! The rest of the a rticle, which continued to the entire second page of the tabloid, follows —
“Mainit na pinag-uusapan ngayon ang iba’t ibang posibilidad na maaaring gawin ni Annabelle Rama Gutierrez para lang Q: In your boarding house, you saw him read and write? hindi matuloy ang pag-aresto at pagkukulong sa kanya ng mga awtoridad kaugnay ng sintensiyang ipinapataw sa kanya ni A: Probably yes.29 Manila-RTC Judge Rodolfo Palattao. Mula noong June 8, nabatid ng Gossip Tabloid , ay wala pang But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas because with his acquittal by the CA, we would run afoul of his constitutional right against double sinumang nakapagtuturo kung saan talaga naroon ang ina ni jeopardy. Ruffa Gutierrez na hindi pinayagang makapagpiyansa ng Anent the third and fourth issues, petitioner argues that the subject article in the June 14, 1995 issue of Gossip Tabloid is not libelous, is covered by the mantle of press freedom, and is Branch 33 para sa pansamantala niyang kalayaan. merely in the nature of a fair and honest comment. We disagree. May mga nagpapalagay na sa pamamagitan ng tinatawag na The banner headlines of the offending article read: back-door exit, ang pag-alis ng bansa sa paraang hindi na KUNG TOTOONG NAKATAKAS NA SI ANNABELLE kailangan pang dumaan sa NAIA, ay nakaalis na si Annabelle RAMA, IMPOSIBLENG SA STATES SIYA NAGPUNTA! noon pang nakaraang Biyernes, June 9, patungong Amerika. _______________ Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing napaka-imposibleng sa Amerika nagtungo si 29 Cross-examination of Bogs Tugas; TSN, March 19, 1996, Annabelle dahil doon man ay may mga nakahanda nang pp. 15-18. awtoridad na handang magkulong kay Annabelle, sakaling 149 mapatunayang naroon nga siya.150 VOL. 550, MARCH 28, 2008 149 150 SUPREME COURT REPORTS ANNOTATED Fermin vs. People Fermin vs. People A:
I only know he goes to Manila everyday.
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“Hindi siya makapupunta sa Amerika dahil napakarami rin niyang asuntong iniwan doon noon pa! “Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil nakaabang na rin ang sangkatutak niyang maniningil du’n ngayon! “Sa Amerika pa kaya siya magt atago, samantalang ilang taon na rin siyang inaabangan du’n ng mga kababayan nating niloko niya, in one way or another?” simula ng source ng Gossip Tabloid. Niliwanag ng natu rang source na ang dahilan ng biglaang pag uwi ng pamilya Gutierrez sa bansa ilang taon na ang nakararaan ay may kinalaman sa malaking halagang hindi nabayaran nina Eddie at Annabelle sa ilang kababayan natin sa Amerika. “Naaalala pa ba ninyo ‘yung mga kalderong ibinebenta noon nina Eddie at Annabelle sa States? “Mga mamahaling kaldero ‘yun, hindi basta -basta kaldero ang ibinebenta nila du’n, kaya talagang ang ganda -ganda na sana ng buhay nilang mag-anak du’n hanggang sa dumating ‘yung point na sinisingil na sila nu’ng mismong kompanya ng kaldero! “Malaki ang halagang involved, milyon -milyon, kaya nu’ng kinasuhan na sila, e kinailangan nilang umalis sa Amerika para bumalik na dito. “Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema kina Eddie at Annabelle, alam ba n’yo yun? “Ang ganda -ganda ng samahan nila nu’ng una sa Amerika, yumaman sila nang dahil sa mga mamahaling kaldero na ibinebenta nila, kaso, sumabit sina Eddie at Annabelle du’n sa mismong company na pinagkukunan nila ng produkto! “Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga kalderong ‘yun, e sumabit pa sila nang malaking
halaga sa mismong manufacturer nu’ng mga ibinebenta nilang mamahaling kaldero! “Yun ang dahilan kung bakit bigla -biglang umuwi sa Pilipinas ang pamilya ni Eddie! “Ang ikinakatwiran nilang mag -asawa noon, e gusto raw kasi nilang lumaking Pilipinong-Pilipino ang kanilang mga anak, pero ang totoo, e, napakalaki ng problemang iniwan nila sa Amerika!” mahabang simula ng source ng Gossip Tabloid. 151 VOL. 550, MARCH 28, 2008 151 Fermin vs. People Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon nina Eddie at Annabelle, lalo na si Annabelle, na bukod sa mataray na ay may kayabangan pa. “Dati nang ganyan si Annabelle! Mataray siya na wala sa lugar. Nu’ng nasa Amerika pa silang mag -anak, e, ‘yun din ang madalas nilang pag-awayan du’n ni Eddie! “Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng mga sama niya ng loob, e, du’n nag -i-stay sa bahay ng mga kaibigan niyang Pinoy! “Grabe ang naging problema nila du’n, kaya wala silang choice that time kung di ang umuwi na lang sa Pilipinas! “Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta- basta, milyunan ‘yon! “Kaso ‘yung pinagbebentahan nila, ‘yung halagang dapat sana, e, ibigay nila sa kompanya dahil porsiyentuhan lang naman sila du’n, nagastos nila! “Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan kung bakit nalubog sila noon sa utang sa States! “Nag-casino pala si Annabelle! Grabe raw kung magpatalo siya, kaya pati ‘yung kinita nila sa pagbebenta ng mamahaling kaldero, e, natunaw!” sabi uli ng source ng Gossip Tabloid. 97
Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source ng Gossip Tabloid , kaya ngayong may asunto naman si Annabelle dito sa Pilipinas ay napaka-imposibleng sa Amerika pa rin siya tatakbo. “Paano siya magpupunta du’n para tuluyan nang manirahan, e, ang dami-dami ring Pinoy na naghihintay sa kanya du’n para maningil sa kanya? “Alam n’yo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na nandu’n, e, may mga nakaabang n a ring asunto para kay Annabelle. “So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa abroad siya dahil sa mga naghihintay na kaso sa kanya du’n. “Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.152 152 SUPREME COURT REPORTS ANNOTATED Fermin vs. People “Di ba’t ilang beses nang nagpapabalik - balik du’n sina Ruffa. Noon pa, e, pinag-aralan na nina Eddie at Annabelle ang posibilidad ng mga gagawin nila! “Alam nila na hindi sila puwedeng mag -stay sa States dahil kalat din ang asunto nila du’n, bukod pa sa napakaraming Pinoy na huma-hunting sa kanila! “Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas siya sa pagkakulong, imposibleng sa States siya nagpunta! “Mas malaking problema ang kailangan niyang h arapin sa States dahil sa perang nadispalko nila, bukod pa sa asuntong iniwan nilang nakatiwangwang du’n! “Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya maisipang pumunta ngayon para lang malusutan si
Ligaya Santos at ang sintensiya sa kanya ni Judge Palattao!” madiin pang pahayag ng mapagkakatiwalaang source ng Gossip Tabloid.”30 A libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary; or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.31 In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense. 32 To say that the article, in its entirety, is not libelous disturbs one’s sensibilities; it would certainly prick one’s conscience. There is evident imputation of the crime of malversation (that the complainants converted for their personal use the money paid to them by fellow Filipinos in America in their business of distributing high-end cookware); of vices or de-
_______________ 30 Records, p. 59. 31 Revised Penal Code, Art. 353. 32 Novicio v. Aggabao, 463 Phil. 510, 516; 418 SCRA 138, 143 (2003). 153
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fects for being fugitives from the law (that complainants and their family returned to the Philippines to evade prosecution in America); and of being a wastrel (that Annabelle Rama Gutierrez lost the earnings from their business through irresponsible gambling in casinos). The attribution was made publicly, considering that Gossip Tabloid had a nationwide circulation. The victims were identified and identifiable. More importantly, the article reeks of malice, as it tends to cause the dishonor, discredit, or contempt of the complainants. Petitioner claims that there was no malice on her part because, allegedly, the article was merely a fair and honest comment on the fact that Annabelle Rama Gutierrez was issued a warrant of arrest for her conviction for estafa before then Judge Palattao’s court . She even cited as proof of her lack of malice the purported absence of any ill will against complainants, as shown by the article she wrote about complainants’ daughter Sharmaine Ruffa Gutierrez in the June 15, 1995 issue of the same tabloid where she expressed her sympathy and admiration for the latter. Notably, however, the complainants successfully refuted the imputations during the trial. Complainants proved that they could return anytime to the United States of America after the publication of the article,33 and that they remained on good terms with the manufacturing
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company of the cookware. 34 To the contrary, both petitioner and Tugas fa iled to adduce evidence to show the truth of the allegations in the article despite the opportunity to do so. Further worthy of mention is the admission of petitioner before the trial court that she had very close association with then Congressman Golez and mayoralty candidate Joey Marquez, and that she would use her skills as a writer to campaign for them. Complainant Eddie Gutierrez ran against
_______________ 33 Exhibits “E-4” to “E-8”; Records, pp. 75 -76. 34 Testimony of Eddie Gutierrez; TSN, January 15, 1996, pp. 66-68, 85-87. 154
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SUPREME COURT REPORTS ANNOTATED Fermin vs. People
then incumbent Golez for the congressional seat in Parañaque City. Petitioner testified in this wise —
Q: When you acted as writer during the campaign, as you said, for Joey Marquez and Golez, of course you did not give your services for free to these candidates, were you paid? A:
I was not paid, Sir.
Q:
You just wanted to help them, am I correct?
A:
Yes, because they are my friends, Sir.
Q:
When you say hard, you wanted your candidates to win, is it not?
A:
Yes, Sir.
Q:
Who was the opponent of Joey Marquez at that time?
A:
The former Mayor Olivares, Sir.
Q:
How about the opponent of Congressman Golez?
A:
One of them is Eddie Gutierrez, Sir.
Q: And the tandem of Marquez and Golez versus the tandem of Olivares and Eddie Gutierrez, am I correct? A:
Q: Of course, the tandem of Joey Marquez was working hard to win over their opponent, is it not? A:
Yes, Sir.
Q:
You were campaigning hard for Golez and Marquez, right?
A:
Right, Sir.
Yes, Sir.
Q: Of course you understand what PRO work is, it includes propaganda, is that correct? A:
A:
Whatever their problems were, I am out.
Q: As a hard campaigner, you wanted your team to win over the other, is this correct? A:
Q: And you wanted them to win the election, thru your being a writer, is that correct?
Actually, that was the situation at that time, Sir.
I am sorry I don’t accept PR work, Sir. 155
VOL. 550, MARCH 28, 2008 Fermin vs. People Q:
155
Do you understand PRO work?
99
A:
Yes, Sir, I know.
Q:
In propaganda, for your side, you promote it as against the other, right?
A:
Yes, Sir.35
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign. Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the press. Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism does not automatically fa ll within the ambit of constitutionally protected speech. If the utterances are fals e, malicious or unrelated to a public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. 36 While complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and commentators such as petitioner, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated
_______________ 35 Cross-examination of Cristinelli Fermin; TSN, May 2, 1996, pp. 54-59. 36 Brillante v. Court of Appeals , G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 541, 574. 156
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and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citi zen.”38
SUPREME COURT REPORTS ANNOTATED Fermin vs. People
and malicious comments, whether in broadcast media or in print, about their personal lives.
willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute “unrestraint” in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the freedom of others. If there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-regulation as distinguished from selfcensorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, “[W]ithout x x x a lively sense of responsibility, a free press may readily become a powerful instrument of injustice. Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we have always strongly maintained, as we do now, that freedom of expression is man’s birthright— constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its “defensor fidei” in a democratic society such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry,
In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld. 37
“We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in
_______________ 37 Soriano v. Intermediate Appellate Court , No. L-72383, November 9, 1988, 167 SCRA 222, 231 (1988).
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38 Borjal v. Court of Appeals, 361 Phil. 1, 28; 301 SCRA 1, 31-32 (1999).
politician, but maintained the pen alty of fine of P4,000.00, with subsidiary imprisonment in case of insolvency, in each of the 157 five (5) cases of libel, on the ground that the intensely feverish VOL. 550, MARCH 28, 2008 157 passions evoked during the election period in 1988 must have Fermin vs. People agitated petitioner into writing his open letter, and that With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008, incomplete privileged communication should be appreciated in the Court issued Administrative Circular No. 08-2008, entitled Guidelines in the Observance of favor of petitioner, especially considering the wide latitude a Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a preference for the imposition of a fine rather than imprisonment, given the circumstances traditionally given to defamatory utterances against public attendant in the cases 39 cited therein in which officials in connection with or relevant to their performance of official duties or against public figures in relation to matters of _______________ public interest involving them. In Buatis, Jr. v. People (G.R No. 142509, March 24, 2006, 485 39 “In Sazon v. Court of Appeals (325 Phil. 1053, 1068; 255 SCRA 275, 292), the Court opted to impose upon petitioner, a SCRA 692, 703 [1996]), the Court modified the penalty lawyer, imposed upon petitioner, an officer of a homeowners’ 158 association, for the crime of libel from imprisonment and fine 158 SUPREME COURT REPORTS ANNOTATED in the amount of P200.00, to fine only of P3,000.00, with Fermin vs. People subsidiary imprisonment in case of insolvency, for the reason only a fine was imposed by this Court on those convicted of libel. It also states that, if the that he wrote the libelous article merely to defend his honor penalty imposed is merely a fine but the c onvict is unable to pay the same, the Revised Penal Code provisions on subsidiary imprisonment should apply. against the malicious messages that earlier circulated around However, the Circular likewise allows the court, in the exercise of sound discretion, the option the subdivision, which he thought was the handiwork of the to impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to private complainant. the imperatives of justice. In Mari v. Court of Appeals (388 Phil. 269, 279; 332 SCRA In the case at bench, the Court considers the public’s speculations as to the whereabouts of Annabelle Rama Gutierrez with the issuance of the warrant of arrest after her initial conviction 475, 483 [2000]), in which the crime involved is slander by for estafa. Petitioner fueled these speculations through her article. However, her article went deed, the Court modified the penalty imposed on petitioner, an overboard and exceeded the bounds of fair comment. This warrants her conviction. Nonetheless, in light of the relatively wide latitude given to utterances against public figures ordinary government employee, from imprisonment to a fine of such as private complainants, and consonant with Administrative Circular No. 08-2008, the P1,000.00, with subsidiary imprisonment in case of insolvency, Court deems it proper to modify the penalty of imprisonment to a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency, in each case. But the award of on the ground that the latter committed the offense in the heat moral damages for each of the private complainants in the amount of P500,000.00, as ordered of anger and in reaction to a perceived provocation. by the trial court, should be restored on account of the serious anxiety and the wounded feelings suffered by complainants from the libelous article, particularly taking into acc ount the In Brillante v. Court of Appeals (G.R. Nos. 118757 & 121571, fact that petitioner and the private complainants were on relatively good terms with each other, November 11, 2005, 474 SCRA 480, 484), the Court deleted and complainants gave no cause or offense which could have provoked the malicious publication. the penalty of imprisonment imposed upon petitioner, a local 101
_______________ the penalty of fine only for the crime of libel considering that it was his first offense and he was motivated purely by his belief that he was merely exercising a civic or moral duty to his client when he wrote the defamatory letter to private complainant.” 159
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WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR No. 20890 is AFFIRMED with the M ODIFICATION that in lieu of imprisonment, petitioner Cristinelli S. Fermin is sentenced to pay a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency, in each case. The award of moral damages, in the amount of P300,000.00 each in favor of complainants Annabelle Rama Gutierrez and Eduardo Gutierrez, is increased to P500,000.00. Costs against petitioner. SO ORDERED. Austria-Martinez (Actg. Chairperson), Tinga,** Chico-Nazario and Reyes, JJ .,concur. Judgment affirmed with modification. Notes. — Reliance on the rule of privileged communication in a suit for malicious prosecution is misplaced, such defense being peculiar to actions for libel. ( Lao vs. Court of Appeals , 271 SCRA 477 [1997]) The filing by a dismissed employee of a criminal action for libel during the pendency of the illegal dismissal case does not constitute forum-shopping. ( Equitable Banking Corporation vs. National Labor Relations Commission, 273 SCRA 352 [1997])
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U.S. Supreme Court Miller v. California, 413 U.S. 15 (1973) Miller v. California No. 70-73 Argued January 18-19, 1972 Reargued November 7, 1972 Decided June 21, 1973 413 U.S. 15
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Syllabus
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirsplurality, it is held: 1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23-24. 2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.
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3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24-25. 4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not emplo y a "national standard." Pp. 413 U. S. 30-34. Vacated and remanded.
Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [Footnote 1] Page 413 U. S. 17 and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically
Page 413 U. S. 16 Page 413 U. S. 18 BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 704(1968) (concurring and dissenting).
based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelo pe addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.
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I
Page 413 U. S. 20
This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material [Footnote 2]
on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.
Page 413 U. S. 19 when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557, 394 U. S. 567(1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio,378 U. S. 184, 378 U. S. 195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U. S. 360-362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U. S. 644 645 (1951); Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 352 U. S. 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 464-465 (1952) It is in this context that we are called
The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating: "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "
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". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social Page 413 U. S. 21 value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."
or representation of sexual matters; and (c) the material is utterly without redeeming social value." Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE's dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirs plurality went on to state: "The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterlywithout redeeming social value."
[Emphasis by Court in Roth opinion.] Id. at 383 U. S. 419 (emphasis in original). "We hold that obscenity is not within the area of constitutionally protected speech or press."
While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirsrequired
354 U.S. at 354 U. S. 48 85 (footnotes omitted). Page 413 U. S. 22 Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that, under the Roth definition, "as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material, taken as a whole, appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description
that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 383 U. S.
106
459 (Harlan, J., dissenting). See also id. at 383 U. S. 461(WHITE, J., dissenting); United States v. Groner, 4 79 F.2d 577, 579581 (CA5 1973).
II
Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S. 770-771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas,390 U.S. at 390 U. S. 704-705 (Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in the area
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354; Roth v. United States, supra, at 354 U. S. 485. [Footnote 5] "The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted]." Breard v. Alexandria,341 U.S. at 341 U. S. 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be
Page 413 U. S. 23
Page 413 U. S. 24
of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.
carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. [Footnote 6] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and no Member of the Court today supports the Memoirs formulation.
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community 107
standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S. 489; (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. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts,
examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
Page 413 U. S. 25
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accomm odation any more than live sex and nudity can
383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more than three Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964); Roth v. United States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and dissenting). We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Page 413 U. S. 26 be exhibited or sold without limit in such public places. [Footnote 8] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-232; Roth v. United States, supra, at 354 U. S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with
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rape, murder, and a host of other offenses against society and its individual members. [Footnote 9] MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United
"hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 354 U. S. 491-492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If
Page 413 U. S. 27 Page 413 U. S. 28 States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger. Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive
the inability to define regulated materials with ultimate, godlike precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone. MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested
109
materials "is hardly a source of edification to the members of this Court." Paris Adult Page 413 U. S. 29 Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts. . . ." "The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so."
[Footnote 11] "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S. 187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 354 U. S. 482485. "Our duty admits of no 'substitute for facing up Page 413 U. S. 30
Id. at 413 U. S. 93, 413 U. S. 92. It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767(1967), and attempt to provide positive guidance to federal and state courts alike. This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment -- because it will lighten our burdens.
to the tough individual problems of constitutional judgment involved in every obscenity case.' [Roth v. United States, supra, at 354 U. S. 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).
III Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently 110
offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.
standards of decency," it was to apply "contemporary community standards of the State of California." During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards [Footnote 12] or to the instructions of the trial judge on "statewide" standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.
As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case
We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter
Page 413 U. S. 31
Page 413 U. S. 32
law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest," and, in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community
of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200: "It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant 111
community standards -- not a national standard, as is sometimes argued. I believe that there is no provable 'national standard.' . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one." It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. [Footnote 13] Page 413 U. S. 33 See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with requiring a jury to apply the standard of "the average person, applying contemporary community
standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v. United States, supra, at 354 U. S. 489. Cf.the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to "contemporary Page 413 U. S. 34 standards of the State of California" serves this protective purpose and is constitutionally adequate. [Footnote 14]
IV The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. "The protection given speech and press was fashioned to assure unfettered interchange of ideasfor the bringing about of
112
Page 413 U. S. 35 political and social changes desired by the people," Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230232; Thornhill v. Alabama, 310 U.S. at 310 U. S. 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. [Footnote 15] There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 354 U. S. 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period" not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." [Footnote 16] We do not see the harsh hand Page 413 U. S. 36 of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political liberty lurking in every state regulation of commercial exploitation of human interest in sex. MR. JUSTICE BRENNAN finds "it is hard to see how stateordered regimentation of our minds can ever be
forestalled." Paris Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation whic h MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17] One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphlne. In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated Page 413 U. S. 37 above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, at 408 U. S. 230, 113
and Roth v. United States, supra, at 354 U. S. 489, not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7.
"(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance."
Vacated and remanded.
"(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials."
[Footnote 1] At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part: "§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state" "(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . ."
"(c) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity." "(d) 'Distribute' means to transfer possession of, whether with or without consideration." "(e) 'Knowingly' means having knowledge that the matter is obscene." Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:
"§ 311. Definitions" "As used in this chapter: "
"(e) 'Knowingly' means being aware of the character of the matter."
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Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant's contentions to the contrary, the record indicates that the new § 311(e) was not applied ex post facto to his case, but only the old § 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal.App.2d 941, 948-950, 63 Cal.Rptr. 680, 685686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any "direct, immediate burden on the performance of the postal functions," or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 U. S. 476, 354 U. S. 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96 (1945). See also Mishkin v. New York, 383 U. S. 502, 383 U. S. 506 (1966); Smith v. California,361 U. S. 147, 361 U. S. 150-152 (1959).
"1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle."
[Footnote 2]
Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used in our language. We note, therefore, that the words "obscene material," as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material "which deals with sex." Roth, supra, at 354 U. S. 487. See also ALI Model Penal Code § 251.4(1) "Obscene Defined." (Official Draft 1962.)
This Court has defined "obscene material" as "material which deals with sex in a manner appealing to prurient interest," Roth v. United States, supra, at 354 U. S. 487, but the Rothdefinition does not reflect the precise meaning of "obscene" as traditionally used in the English language. Derived from the Latin obscaenus ob, to, plus caenum, filth, "obscene" is defined in the Webster's Third New International Dictionary (Unabridged 1969) as
The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome." The material we are discussing in this case is more accurately defined as "pornography" or "pornographic material." "Pornography" derives from the Greek (porne, harlot, and graphos, writing). The word now means "1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."
[Footnote 3] 115
In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398 U.S. at 398 U. S. 434-435 (1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us. [Footnote 4] See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73. [Footnote 5] As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 200(1964): "For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it -- at least until a more satisfactory definition is evolved. No government -- be it federal, state, or local -should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile.
There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule." [Footnote 6] See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power. We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reel of Film, post, at 413 U. S. 130n. 7. [Footnote 7] "A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication. . . ." Kois v. Wisconsin, 408 U. S. 229, 408 U. S. 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of
116
"social importance." See id. at 383 U. S. 462(WHITE, J., dissenting). [Footnote 8] Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U. S. 367, 391 U. S. 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be "sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." See California v. LaRue, 409 U. S. 109, 409 U. S. 117-118 (1972). [Footnote 9] The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30,
"it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486, 165 U. S. 499-500." [Footnote 10] As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 354 U. S. 491-492: "Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . [T]he Constitution does not require impossible standards;' all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .' United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark" ". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ." "Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United 117
States, 342 U. S. 337, 342 U. S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373." [Footnote 11] We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation. [Footnote 12] The record simply does not support appellant's contention, belatedly raised on appeal, that the State's expert was unqualified to give evidence on California "community standards." The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive state-wide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U. S. 348, 393 U. S. 356 (1969). [Footnote 13] In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of "local" community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to
place. Id. at 378 U. S. 193-195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however, necessarily implies that materials found tolerable in some places, but not under the "national" criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S. at 354 U. S. 506. Appellant also argues that adherence to a "national standard" is necessary "in order to avoid unconscionable burdens on the free flow of interstate commerce." As noted supra at 413 U. S. 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a State in th e exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U. S. 424(1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v. Alexandria, 341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52(1915). [Footnote 14] 118
Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that, once material has been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a "double jeopardy" claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U. S. 502, 383 U. S. 512-514 (1966). [Footnote 15] In the apt words of Mr. Chief Justice Warren, appellant in this case was "plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I
believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide." Roth v. United States, supra, at 354 U. S. 496 (concurring opinion). [Footnote 16] See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed "A new age had come and other dreams -- the age and the dreams of a middle-class sovereignty. . . . From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone do wn in the fierce battles of the Civil War." Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952). [Footnote 17]
119
"[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . . [390 U.S. 629 (1968)]." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 690 (1968) (footnote omitted). MR. JUSTICE DOUGLAS, dissenting.
I Today we leave open the way for California [Footnote 2/1] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law. The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U. S. 476, it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Id. at 354 U. S. 487. Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming Page 413 U. S. 38 social importance." Id. at 354 U. S. 484. The presence of a "prurient interest" was to be determined by "contemporary community standards." Id. at 354 U. S. 489. That test, it has
been said, could not be determined b y one standard here and another standard there, Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 194, but "on the basis of a national standard." Id. at 378 U. S. 195. My Brother STEWART, in Jacobellis, commented that the difficulty of the Court in giving content to obscenity was that it was "faced with the task of trying to define what may be indefinable." Id.at 378 U. S. 197. In Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418, the Roth test was elaborated to read as follows: "[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." In Ginzburg v. United States, 383 U. S. 463, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The "leer of the sensualist" was said to permeate the advertisements. Id. at 383 U. S. 468. The Court said, "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact ma y be decisive in the determination of obscenity." Id. at 383 U. S. 470. As Mr. Justice Black said in dissent,
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". . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal." Id. at 383 U. S. 476. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four.
Today we would add a new three-pronged test: "(a) whether 'the average person, applying contemporary community standards,' would find that 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."
Page 413 U. S. 39 A further refinement was added b y Ginsberg v. New York, 390 U. S. 629, 390 U. S. 641, where the Court held that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors." But even those members of this Court who had created the new and changing standards of "obscenity" could not agree on their application. And so we adopted a per curiam treatment of socalled obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its "dominant tendency might be to deprave or corrupt' a reader." [Footnote 2/2] Others look not to the content of the book, but to whether it is advertised "`to appeal to the erotic interests of customers.'" [Footnote 2/3] Some condemn only "hard-core pornography," but even then a true definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I see it." [Footnote 2/4]
Those are the standards we ourselves have written into the Constitution. [Footnote 2/5] Yet how under these vague tests can Page 413 U. S. 40 we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene? Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for 121
deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may
"The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment."
Page 413 U. S. 41 Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 707. be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people. Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime, a publisher would know when he was on dangerous ground. Under the present regime -- whether the old standards or the new ones are used -- the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg, and has all the evils of an ex post facto law. My contention is that, until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:
In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no "fair warning, at the time of their conduct" Page 413 U. S. 42 while on the property "that the act for which they now stand convicted was rendered criminal" by the state statute. Id. at 378 U. S. 355. The same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case - certainly when constitutional rights are concerned -- we should not allow men to go to prison or be fined when they had no "fair warning" that what they did was criminal conduct.
II If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscen e and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague 122
law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does, [Footnote 2/6] and my views Page 413 U. S. 43 on the issue have been stated over and over again. [Footnote 2/7] But at least a criminal prosecution brought at that juncture would not violate the time-honored "void for vagueness" test. [Footnote 2/8] No such protective procedure has been designed by California in this case. Obscenity -- which even we cannot define with precision -- is a hodge-podge. To send Page 413 U. S. 44 men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.
compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban. The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazin e in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for
III Page 413 U. S. 45 While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 467, where I protested against making streetcar passengers a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being
dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. [Footnote 2/9] As 123
is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely because of it -speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some. The standard "offensive" is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves "in a manner annoying to persons
Id. at 402 U. S. 614. How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to punish people who publish materials "offensive" to some people is difficult to square with constitutional requirements. If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.
Page 413 U. S. 46 passing by." We struck it down, saying: "If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion, this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." "Conduct that annoys some people does not annoy others. Thus, the ordinance is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all."
We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires Page 413 U. S. 47 that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.
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[Footnote 2/1] California defines "obscene matter" as "matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance." Calif. Penal Code § 311(a). [Footnote 2/2] Roth v. United States, 354 U. S. 476, 354 U. S. 502 (opinion of Harlan, J.). [Footnote 2/3] Ginzburg v. United States, 383 U. S. 463, 383 U. S. 467.
At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials: "Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied, and the distinctions made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials."
[Footnote 2/4]
Report of the Commission on Obscenity and Pornography 53 (1970).
Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 197 (STEWART, J., concurring).
[Footnote 2/6]
[Footnote 2/5]
It is said that "obscene" publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U. S. 553, 297 U. 125
S. 597, or communications respecting the sale of spurious or fraudulent securities. Hall v. Geier-Jones Co.,242 U. S. 539, 242 U. S. 549; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 242 U. S. 567; Merrick v. Halsey & Co., 242 U. S. 568, 242 U. S. 584. The First Amendment answer is that, whenever speech and conduct are brigaded -- as they are when one shouts "Fire" in a crowded theater -- speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490, stated that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said: "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now."
78; Smith v. California, 361 U. S. 147, 361 U. S. 167; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 697; Roth v. United States, 354 U. S. 476, 354 U. S. 508; Kingsley Books, Inc. v. Brown, 354 U. S. 436, 354 U. S. 446; Superior Films, Inc. v. Department of Education, 346 U. S. 587, 346 U. S. 588; Gelling v. Texas, 343 U. S. 60. [Footnote 2/8] The Commission on Obscenity and Pornography has advocated such a procedure: "The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions. . . ."
Id. at 336 U. S. 498. [Footnote 2/7] See United States v. 12 200-ft. Reels of Film, post, p. 413 U. S. 123; United States v. Orito, post, p. 413 U. S. 139; Kois v. Wisconsin, 408 U. S. 229; Byrne v. Karalexis, 396 U. S. 976, 977; Ginsberg v. New York, 390 U. S. 629, 390 U. S. 650; Jacobs v. New York, 388 U. S. 431, 388 U. S. 436; Ginzburg v. United States, 383 U. S. 463, 383 U. S. 482; Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 424; Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 72; Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S.
"A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for 126
the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material."
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
Report of the Commission on Obscenity and Pornography 63 (1970).
In my dissent in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be ma iled unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that, under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. *
[Footnote 2/9] Obscenity law has had a capricious history: "The white slave traffic was first exposed by W. T. Stead in a magazine article, 'The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge, in deciding what is indecent or profane, may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus, musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a round-about modern method to make heterodoxy in sex matters and even in religion a crime." Z. Chafee, Free Speech in the United States 151 (1942).
"[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Gooding v. Wilson, 405 U. S. 518, 405 U. S. 521 (1972), quoting Page 413 U. S. 48
127
from Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 402 U. S. 616 (1971); id. at 402 U. S. 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U. S. 17, 362 U. S. 21-22 (1960); NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963). Since my view in Paris Adult Theatre Irepresents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a "readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra, at 380 U. S. 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 402 U. S. 616. * Cal. Penal Code § 311.2(a) provides that "Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor."
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should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the ca se of United States v. Sedano, a prosecution No. L-69500. July 22, 1985.* ________________
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners, vs. CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents. Constitutional Law; Motion Pictures; Censorship is, in extreme cases, a sine qua non to the meaningful exercise of the rights to free speech and press. — Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is, however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis
* EN BANC. 718
718
SUPREME COURT REPORTS ANNOTATED Gonzales vs. Kalaw Katigbak
for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one ch ooses without any previous license. Same; Same; The power of the Board of Review for Motion Pictures and Television (BRMPT) is limited to the classification of films. — It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. Same; Same; The test to determine whether a motion pictures exceeds the bounds of permissible exercise of free speech and, therefore, should be censored, is the clear and danger test. — The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable. The basic postulate, therefore, as noted earlier, is that where the movies, theatrical productions, radio scripts, television programs, and other such media of expression are concerned — included as they are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public saf ety, public morals, public health or any other legitimate public interest. There is merit to the observation of Justice Douglas that “every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor.” Same; Same; The law frowns on obscenity. — The law, however, frowns on obscenity — and rightly so. As categorically stated by Justice Brennan in Roth v. United States, speaking of the free speech and press guarantee of the United States Constitution: “All ideas 719
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having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the
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guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” Such a view commends itself for approval. Same; Same; There is difficulty in determining what is obscene. — There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: “The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole a ppeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as un-constitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.” Same; Same; Sex and obscenity are not synonymous. — It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that “sex and obscenity are not synonymous.” Further: “Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Same; Same; Certiorari; The BRMPT abused its discretion in classifying the movie “Kapit s a Patalim” as “ For Adults Only,” but there are not enough votes to maintain that such an abuse can be considered grave. The classification serves as a warning that Kapit is not fit for the young. — This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respon720
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dent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as “For Adults Only,” without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: “The adult classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes.” Further: “Respondents further stated in its answer that petitioner company has
an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film.” Petitioners, however, refused the “For Adults Only” classification and instead, as noted at the outset, filed this suit for certiorari. Same; Same; Radio and Television; This ruling is limited to motion pictures. Television is subject to a less liberal approach as it reaches its audience freely regardless of age. — All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons ha ve to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. PETITION for certiorari to review the decision of the Board of Review for Motion Pictures and Television. The facts are stated in the opinion of the Court. 721
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Irene R. Cortes, Perfecto V Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners. The Solicitor General for respondents.
FERNANDO, C.J.: In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the constitutional right to f reedom of expression1 of an artist — and for that matter a man of letters too — as the basis for a ruling on the scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised. The dispute between the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified “For Adults Only.” There is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in view of the objections raised. Thus the relevance of this constitu tional command: “Arts and letters shall be under the patronage of the State.”2 The principal petitioner is Jose Antonio U. Gonzalez,3 President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification “For Adults Only,” with certain changes and deletions enumerated was granted. A motion for
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________________ 1 The Constitution provides: “No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.” 2 Article XV, Section 9, par. (2) reads in full: “Filipino culture shall be preserved and developed for national identity. Arts and letter shall be under the patronage of the State.” 3 The other petitioners are Lino Brocka, Jose F. Lacaba and Dulce Q. Saguisag. 722
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reconsideration was filed by petitioners stating that the classification of the film “For Adults Only” was without basis.4 Then on November 12, 1984, respondent Board released its decision: “Acting on the applicant’s Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the subcommittee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies a re supplied.”5 Hence this petition. This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as one of its special and a ffirmative defenses, it was alleged that the petition is moot as “respondent Board has revoked its questioned resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions presented above would b e academic on the case.” 6Further: “The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Board’s action a re the deletions ordered in the film.” 7 The prayer was for the dismissal of the petition. An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as “For Adults Only.” For petitioners, such classification “is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the integrity of th e film. Viewed a s a whole, there is no basis even for the vague speculations advanced by the Board as basis for its classifica-
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4 Petition, par. 3.33. 5 Ibid, par. 3.35. 6 Answer, 9-10. 7 Ibid, 10. 723
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tion.”8 There was an answer to the amended petition filed on February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered by the Board a s well as the statutory provisions for review of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the sufficiency of the standards remains the only question at issue. It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the classification of “For Adults Only.” This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary expression embraced in the free speech and free press guarantees of the Constitution. 1. Motion pictures are important both as a medium for the communication of ideas and the expression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson 9 is the “importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform.” 10 There is no clear dividing line between what involves knowledge and what a ffords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom, as stated in the opinion of the Court, “may be identified with the liberty to discuss publicly and truthfully any matter of public
________________ 8 Amended Petition, 20. 9 343 US 495 (1942). 10 Ibid, 501. 11 G.R. No. 65366, November 9, 1983, 125 SCRA 553. Cf. Winters v. New York, 333 US 507 (1948). 724
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the State has a right to prevent. Such danger must not only be dear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable. The basic postulate, therefore, as noted earlier, is that where the movies, theatrical productions, radio scripts, television programs, and other such media of expression are concerned — included as they are in freedom of expression — censorship, especially so if an entire production is banned, 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.17There is merit to the observation of Justice Douglas that “every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor.”18
Gonzales vs. Kalaw Katigbak concern without censorship or punishment.”12 This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if “there be a ‘clear and present danger of a substantive evil that [the State] has a right to prevent.’ ”13 2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is, however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case of United States v. Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view in Mutuc v. Commission on Elections,15 where an order of respondent Commission on Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16
.
4.The law, however, frowns on obscenity — and rightly so. As categorically stated by Justice Brennan in Roth v. United States, 19 speaking of the free speech and press guarantee of the United States Constitution: “All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”20 Such a view commends itself for a pproval.
________________
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12 Ibid, 560. 13 Ibid, 561. 14 14 Phil. 338. Cf. US v. Sotto, 38 Phil. 666 (1918). 15 L-32717, November 26, 1970, 36 SCRA 228. 16 Cf. Bantam Books, Inc. v. Sullivans, 372 US 58 (1962); Organization for Better Austria v. Keafe, 402 US 415 (1971).
17 Cf. Reyes v. Bagatsing, 125 SCRA 553, 562. 18 Superior Films v. Regents of University of State of New York, 346 US 587, 589 (1954), Douglas, J., concurring. 19 354 US 476 (1957). 20 Ibid, 484-485. There was reference to international agreements of over 50 nations and the obscenity laws of all the then
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SUPREME COURT REPORTS ANNOTATED Gonzales vs. Kalaw Katigbak
3.The test, to repeat, to determine whether freedom of expression may . be limited is the clear and present danger of an evil of a substantive character that
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.
Gonzales vs. Kalaw Katigbak
5.There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: “The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.” 21
material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” 25 8. In the applicable law, Executive Order No. 876, reference was made to respondent Board “applying contemporary Filipino cultural values as standard,” 26words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters “shall be under the patronage of the State.”27 That is a constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for rea lity. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene. As so well put by Justice Frankfurter in a concurring opinion, “the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit”28 in this sensitive area of a man’s personality. On the question of obscenity, therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionally. To repeat, what was stated in a recent decision29citing the language of Justice
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6.The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos,22 decided in 1918. While recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in determining what constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of expression is a llowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-six years later, that the United States Supreme Court enunciated a similar doctrine.
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7.It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that “sex and obscenity are not synonymous.”24 Further: “Obscene material is
25 Ibid. 26 Executive Order No. 876, Section 3(c) (1963). 27 Article XV, Section 9, par. (2), last sentence of the Constitution. 28 Kingsley v. Regents, 360 US 684, 695 (1959). 29 Lopez, Jr. v. Commission on Elections, G.R. No. 65022, May 31, 1985.
________________ 48 States of the Union as well as 20 obscenity laws enacted by the Congress of the United States from 1842 to 1956. Chaplinsky v. New Hampshire, 315 US 568 (1942) was also cited. 21 Ibid, 488-489. 22 37 Phil. 731. 23 376 US 254. 24 Roth v. United States, 354 US 476, 487 (1957).
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Malcolm in Yu Cong Eng v. Trinidad, 30 it is “an elementary, a fundamental, and a universal role of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions one of which will maintain and the other destroy it, the courts will always adopt the fo rmer.”31 As thus construed, there can be no valid objection to the sufficiency of the controlling standard and its conformity to what the Constitution ordains.
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9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as “For Adults Only.” without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: “The adult classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes.” 32 Further: “Respondents further stated in its answer that petitioner company has an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film.”33 Petitioners, however,
ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as “For Adults Only.” Teehankee, Makasiar, Concepcion, Jr., Melencio Herrera, Plana, Escolin, Relova, Gutierrez, Jr., Cuevas and Alampay, JJ., concur. Aquino, J., in the result. Petitioner has no cause of action for certiorari. De la Fuente, J., did not take part. Abad Santos, J., is on official leave. Petition dismissed. Notes. —The request of a school head for a review of student organ’s publication policies does not constitute an impairment of freedoms of speech and press. ( Laxamana vs. Borlata, 47 SCRA 29.) The Constitution frowns upon disorder or tumult attending a public rally. Peaceable assembly is guaranteed, but not ________________ 34 Cf. United States v. Roth, 237 F 2d 796 (1956). 730
730
________________ 30 47 Phil. 385 (1925). 31 Ibid, 415. 32 Answer to Amended Petition, 4. 33 Ibid, 4-5. 729
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SUPREME COURT REPORTS ANNOTATED De Guzman vs. Court of Appeals
resort to force. ( Reyes vs. Bagatsing, 125 SCRA 553.) Litigations involving permits to stage a rally are better started at the trial court level. ( Ruiz vs. Gordon, 126 SCRA 233.) The curtailment of the freedoms of speech and press of radio and TV stations is permissible for election purposes. ( United Democratic Opposition (UNIDO) vs. COMELEC, 104 SCRA 17.) Remarks made at a board meeting are privileged in nature as a valid exercise of one’s constitutional freedom of expression. An employee cannot be dismissed for making such remarks alleged to be libelous. ( Union of Supervisors (R.B.) — NATU v s. Sec. of Labor, 109 SCRA 139.)
refused the “For Adults Only” classification and instead, as noted at the outset, filed this suit for certiorari. 10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the ground that there are not enough votes for a
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LEO PITA, doing business under the name and style of PINOY PLAYBOY, petitioner, vs. THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.
G.R. No. 80806. October 5, 1989. *
Constitutional Law; Press Freedom; 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 is the test in determining the existence of obscenity. — The Court states at the outset that it is not the first time that it is being asked to pronounce what “obscene” means or what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger, the Court laid down the test, in determining the existence of obscenity, as follows: “whether the tendency of the mat ter 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.” “Another test,” so Kottinger further declares, “is that which shocks the ordinary and common sense of men as an indecency.” Same; Same; Same; If the pictures here in que stion were used not exactly for art’s sake but rather for commercial purposes, the pictures are not entitled to any constitutional protection. — As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier said than done to say, indeed, that if “the pictures here in question were used not exactly for art’s sake but rather for commercial purposes,” the pictures are not entitled to any constitutional protection. Same; Same; There is no challenge on the right of the State in the legitimate exercise of police power to suppress smut — provided it is smut. — In the case at bar, 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. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today.
_______________ * EN BANC. 363
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VOL. 178, OCTOBER 5, 1989 Pita vs. Court of Appeals Goya’s La Maja desnuda was once banned from public exhibition but now adorns the world’s most prestigious museums. Same; Same; Obscenity is not a bare matter of opinion. — But neither should we say that “obscenity” is a bare (no pun intended) matter of opinion. As we said ea rlier, it is the divergent perceptions of men and women that have probably compounded the problem rather than resolved it. Same; Same; Immoral lore or literature co mes within the ambit of free expression although not its protection; Burden to show the existence of grave and imminent danger that would justify adverse action lies on the authorities. — 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, so we asserted in Reyes v. Bagatsing, “the burden to show the existence of grave and imminent danger that would justify adverse action . . . lies on the . . . authorit[ies].” Same; Same; Clear and Present Danger Rule; There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and p resent danger. — “There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger.” “It is essential for the validity of . . . previous restraint or censorship that the . . . authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require.” “To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test.” Same; Same; Same; Same; Court not convinced that 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. — 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. Same; Same; Same; Same; Same; Police Power; Fact that the former resp ondent Mayor’s act was sanctioned by police power is no license to seize property in disregard of due process; Police power 364
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals
defined. — The fact that the former respondent Mayor’s act was sanctioned by “police power” is no license to seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon, we defined police power as “state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare.” Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities 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
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right to due process of law and the right against unreasonable searches and seizures, specifically. Same; Same; Searches and Seizures; Searches and seizures may be done only through a judicial warrant otherwise they become unreasonable and subject to challenge. — It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, We countermanded the orders of the Regional Trial Court authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here 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, and as we have indicated, speech is speech, whether political o r “obscene”. Same; Same; Same; Same; Court not ruling out warrantless searches. — The Court is not ruling out warrantless searches, as th e Rules of Court (1964 rev.) (the Rules then prevailing), provide: SEC. 12. Search without warrant of person arrested. — A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. 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 are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code. Same; Same; Same; Same; Same; Argument that there is no constitutional nor legal provision which would free the accused of all criminal responsibility because there had been no warrant and that violation of penal law must be punished, rejected. — We reject outright the argument that “[t]here is no c onstitutional nor legal provision which would 365
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free the accused of all criminal responsibility because there had been no warrant,” and that “violation of penal law [must] be punished.” For starters, there is no “accused” here to speak of, who ought to be “punished”. Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant b ecause, in his opinion, “violation of penal laws” has been co mmitted, is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the petitioner.
PETITION to review the decision of the Court of Appeals. The facts are stated in the opinion of the Court. William C. Arceno for petitioner. Casibang, Perello and De Dios for private respondent. SARMIENTO, J.:
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The petitioner, publisher of Pinoy Playboy, a “men’s magazine”, seeks the review of the decision 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 unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of property without due process of law. There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing 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, news-stand 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 at the University belt along C.M. Recto Avenue, Manila, 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. _____________ 1 Gonzaga-Reyes, Minerva, J., Javellana, Luis A. and Ramirez, Pedro A., JJ., Concurring. 366
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injun ction against Mayor Bagatsing and 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 plaintiff’s magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. By order dated December 8, 1983 the Court set the hearing on the petition for preliminary injunction on December 14, 1983 and ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should not be granted. On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order against indiscriminate seizure, confiscation and burning of plaintiff’s “Pinoy Playboy” Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing’s pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on December 14, 1983. In his Answer and Opposition filed on December 27, 1983 defendant Mayor 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 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 plaintiff’s 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 belonged to the magazine stand owners and
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peddlers who voluntarily surrendered their reading materials, and that the plaintiff’s establishment was not raided. The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer. On January 5, 1984, 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 plaintiff’s magazine before any judicial finding is made on whether said magazine is obscene or not”. The restraining order issued on December 14, 1983 having lapsed on January 3, 1984, the plaintiff filed an urgent motion for issuance of another restraining order, which was opposed by defendant on the ground that issuance of a second restraining order would violate the 367
On January 16, 1984, the Court issued an order granting plaintiff’s motion to be given three days “to file a reply to defendants’ opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file a rejoinder within the same period from receipt, after which the issue of Preliminary Injunction shall be resolved”. Plaintiff’s supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff’s supplemental Memorandum on January 20, 1984, and plaintiff filed his “Reply-Memorandum” to defendants’ Comment on January 25, 1984. 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.2 The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or materials deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution against unreasonable searches and seizure (Sec. 3, Art. IV). It must be equally conceded, however, that freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against unreasonable searches
VOL. 178, OCTOBER 5, 1989 367 Pita vs. Court of Appeals Resolution of the 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 from date of its issuance. On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the issuance of a writ of preliminary injunction. 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”.
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2 Rollo, 30-31. 368
368
SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals and seizures recognizes certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui, 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857).3 The petitioner now ascribes to the respondent court the following errors:
.
1.The Court of Appeals erred in affirming the decision of the trial court and, in effect, 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.
.
2.The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was merely the application of petitioner for the writ of preliminary injunction.4 The Court states at the outset that it is not the first time that it is being asked to pronounce what “obscene” means or what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger,5 the Court laid down the test, in determining the existence of obscenity, as follows: “whether the tendency of the matter charged as obsc ene, 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.”6 “Another test,” so Kottinger further declares, “is that which shocks the ordinary and common sense of men as an indecency.”7 Kottinger hastened to say, however, that “[w]hether a picture is obscene or indecent must depend upon the circumstances of the case, ”8 and that ultimately, the question is to be decided by the “judgment of the aggregate sense of the community reached by it.”9
____________ 3 Id., 41. 4 Id., 12-13. 5 45 Phil. 352 (1923), per Malcolm, J.
6 Supra, 356 7 Supra, 357. 8 Supra. 9 Supra, 359. 369
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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 does a publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is obscene, and vice-versa. Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical “community standard”— whatever that is — and that the question must supposedly be judged from case to case. About three decades later, this Court promulgated People v. Go Pin,10 a prosecution under Article 201 of the Revised Penal Code. Go Pin was also even hazier:
x x x We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement, including the youth who
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because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.11 xxx xxx xxx As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier
____________ 10 97 Phil. 418 (1955), per Montemayor, J. 11 Supra, 419.
a corrupting influence specially on the youth of the land. x x x14 Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by “artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes,” 15 could the same legitimately lay claim to “art”? For another, suppose that the exhibition was s o presented that “connoisseurs of [art], and painters and sculptors might find inspiration,” 16 in it, would it cease to be a case of obscenity? 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.
____________
370
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals
said than done to say, indeed, that if “the pictures here in question were used not exactly for art’s sake but rather for commercial purposes,”12 the pictures are not entitled to any constitutional protection. It was People v. Padan y Alova,13 however, that introduced to Philippine jurisprudence the “redeeming” element that should accompany the work, to save it from a valid prosecution. We quote:
x x x 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 obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting
12 Supra. 13 101 Phil. 749 (1957). 14 Supra, 752. 15 Go Pin, supra. 16 Padan y Alova, supra. 371
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In a much later decision, Gonzalez v. Kalaw Katigbak ,17 the Court, following trends in the United 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 te rms of the “dominant theme” of the work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that “contemporary community standards” are the 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 wide discretion Kottinger had given unto law enforcers. It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which, states one authoritative commentator (with ample sarcasm), has been as “unstable as it is unintelligible.”19 Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one “utterly without any redeeming social value,” 21 marked yet another development. The latest word, however, is Miller expressly v. California,22 which abandoned Massachusettes, and established “basic guidelines,” 23 to wit: “(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
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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.”24 (A year later, the American Supreme Court decided Hamling
considered important literature today.29Goya’s La Maja desnuda was once banned from public exhibition but now adorns the world’s most prestigious museums. But neither should we say that “obscenity” is a bare (no pun
______________
_____________
17 No. 69500, July 21, 1985, 137 SCRA 717, per Fernando, C.J. 18 Supra, 726, citing Roth v. United States, 354 US 476 (1957). 19 TRIBE, AMERICAN CONSTITUTIONAL LAW 656 (1978 ed.). 20 383 US 410 (1966). 21 See TRIBE, id., 661. 22 413 US 15 (1973). 23 Supra, 24. 24 Supra.
25 418 US 87 (1974). 26 418 US 153 (1974). 27 TRIBE, id. 28 Id., 661-662; emphasis in the original. 29 See Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the movie version in Lady Chatterley’s Lover. See also United States v. One Book called “Ulysses”, 5 F. Supp. 182 (1934).
372
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals
v. United States,25 which repeated Miller , and Jenkins v. Georgia,26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of “genitals” portrayed on screen, although the film highlighted contemporary American sexuality.) 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 “obscen -ity” is not included in the guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And “[t]here is little likelihood,” says Tribe, “that this development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject — as in all speech — to regulation in the interests of [society a s a whole] — but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed.”28 In the case at bar, 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. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are
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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. 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 whether or not an “acceptable” solution is in sight. In the final analysis perhaps, the task that confronts u s is less heroic than rushing to a “perfect” definition of “obscenity”, if that is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the petition. However, this much we have to say. 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.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 “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 censorship that the . . . authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require.”34 “To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test.”35
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____________ 30 Gonzales vs. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 8 35; Reyes v. Bagatsing, No. 65366, November 9, 1983, 125 SCRA 553. 31 Supra. 32 Supra, 572 per Teehankee, J., Concurring; Concurring; emphasis in the original. 33 Supra, emphasis in the original. 34 Supra, emphasis in the original. 35 Supra, emphasis in the original. 374
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals Appeals
The above disposition must not, however, be taken as a neat effort to arrive at a solution — so so only we may arrive at one — but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue. It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure. As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must come to terms with, and be held accountable for, due due process. 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. The Court of Appeals has no “quarrel that . . . freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals.”36 Neither do we. But it brings us back to square one: were the “literature” so confiscated “pornographic”? That “we h ave laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and 37 is is also fine, but the question, again, is: Has the petitioner been found guilty P.D. No. 969),” 37 under the statute?
_____________
36 Rollo, id., 41. 37 Id., The question whether or not Presidential Decrees Nos. 960 and 969 are unconstitutional is another thing; we will deal with the problem in the proper hour and in the appropriate case. Judicial restraint is a bar to a consideration of the problem that does not exist, or if it exists, it exists but in the abstract. 375
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The fact that the former respondent Mayor’s act was sanctioned by “police power” is no license to seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We defined police power as “state authority to enact legis lation that may interfere 39 Presidential Presidential with personal liberty or property in order to promote the general welfare.” 39 Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities 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 to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. — The disposition — The of the literature, films, prints, engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the following rules:
.
(a)Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.
.
(b)Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary. Constabulary.
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.
(c)The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days af ter his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for review. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No. 960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. — Additional penalties shall be — Additional imposed as follows: 1.In case the offender is a government official or employee ______________ 38 G.R. No. 81958, June 30, 1988. 39 Supra, at 3.
such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.42 seized.42 It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP ,43 43 We We countermanded the orders of the Regional Trial Court authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here 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, and as we have indicated, speech is speech, whether political or “obscene”. The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:
SEC. 12. Search without warrant of person arrested. — arrested. — A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the of-
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals Appeals
. who allows the violations of Section 1 hereof, the penalty as provided provided herein shall be imposed imposed in the maximum period and, in addition, the accessory penalties provided for in the Revised Penal Code, as amended, shall likewise be imposed.40 imposed. 40
_______________ 40 Pres. Decree No. 960, sec. 2 as amended by Pres. Decree No. 969. 41 CONST. (1973), the Charter then in force. 42 Supra, art. IV, sec. 3. 43 No. 64266, December 26, 1984, 133 SCRA 800. 377
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Under the Constitution,41 Constitution, 41 on on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of 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 determined by the judge, or
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fense.44 fense.44 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 are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code.
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We reject outright the argument that “[t]here is no constitutional nor legal provision which would free the accused of all criminal responsibility because th ere had been no warrant,”45 45 and and that “violation of penal law [must] be punished.” 46 For starters, there is no “accused” here to speak of, who ought to be “punished”. Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because, 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 petitioner. We make this resumé.
.
1.The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, opinion, an obscenity rap is in order;
.
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 substantive enough to warrant State interference and a ction;
.
3.The judge must determine whether or not the same are indeed “obscene:” the question is to be resolved on a case-to-case basis and on His Honor’s sound discretion.
.
4.If, in the opinion of the court, probable cause exists, it
_______________ 44 RULES OF COURT (1964), Rule 126, sec. 12. As amended, the provision now r eads eads as follows: “SEC. 12. Search incident to lawful arrest. — — A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.” [RULES ON CRIMINAL PROCEDURE (1985 rev.), Rule 126, sec. 12.] 45 Rollo, id., 51. 46 Id. 378
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SUPREME COURT REPORTS ANNOTATED Pita vs. Court of Appeals Appeals
.
may issue the search warrant prayed for;
5.The proper suit is then brought in the court under Article 201 of the . Revised Penal Code;
.
6.Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed “obscene”.
These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power u nder the Civil Code47 Code 47 or or the Revised Penal code.48
_______________ 47 CIVIL CODE, art. 32. The provision states: “ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
. . .
(1)Freedom of religion; (2)Freedom of speech; (3)Freedom to write for the press or to maintain a periodical publication; publication; . (4)Freedom from arbitrary or illegal detention;
. .
(5)Freedom of suffrage; (6)The right against deprivation of property without due process of law; (7)The right to a just compensation when private . property is taken taken for public public use; (8)The right to the equal protection of the laws; .
. (9)The right to be secure in one’s person, house, papers, and effects against unreasonable unreasonable searches and seizures; .
(10)The liberty of abode and of changing the same;
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.
(11)The correspondence;
privacy
of
communication
and
.
(12)The right to become member of associations or societies for purposes not contrary to law; . (13)The right to take part in a peaceable assembly to petition the the Government for redress of of grievances;
in accordance with a statute which has not been judicially declared unconstitutional; and . (19)Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate . (14)The right to be free from involuntary servitude and distinct civil action for damages, and for other relief. Such in any form; civil action shall proceed independently of any criminal (15)The right of the accused against excessive bail; . prosecution (if the latter be instituted), and may be proved by a (16)The right of the accused to be heard by himself . preponderance of evidence. and counsel, to be informed of the nature and cause of the The indemnity shall include moral damages. Exemplary accusation against him, to have a speedy and public trial, to damages may also be adjudicated. meet the witnesses face to face, and to have compulsory The responsibility herein set forth is not demandable from a process to secure secure the attendance attendance of witness witness in his behalf; judge unless his act or omission constitutes a violation of the . (17)Freedom from being compelled to be a witness Penal Code or other penal statute. against one’s self, or from being forced to confess guilt, or 48 REV. PEN. CODE, arts. 129, 130. The provisions state: from being induced by a “ART. 129. Search warrants maliciously obtained and abuse 379 In addition to the in the service of those legally obtained. — obtained. — In VOL. 178, OCTOBER 5, 1989 379 liability attaching to the offender for commission of any other Pita vs. Court of Appeals Appeals offense, the penalty of arresto mayor in its maximum period to WHEREFORE, the petition is GRANTED. The decision of the respondent court is prision correccional in its minimum period and a fine not REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search exceeding P1,000 pesos shall be imposed upon any public and seizure officer or employee who shall procure a search warrant without _______________ just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. . promise of immunity or reward to make such The acts, committed by a public officer or employee, confession, except when the person confessing becomes a punishable by the above article are: State witness; . (18)Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted
.
(1)Procuring a search warrant without just cause;
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.
(2)Exceeding one’s authority or using unn ecessary severity in the execution of a legally procured search warrant.”
“ART. 130. Searching domicile without witnesses. — The penalty of arresto ma yor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. 380
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SUPREME COURT REPORTS ANNOTATED Avedana vs. Court of Appeals
have been destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and academic. SO ORDERED. Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortés, Griño Aquino, Medialdea and Regalado, JJ., concur. Fernan (C.J.), Narvasa and Feliciano, JJ., In the result. Gutierrez, Jr., J., On leave. Petition granted. Decision reversed and set aside. Note. — General search warrants are outlawed because they place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims, caprice or passion of peace officers. (Stonehill vs. Diokno, L-19550, June 19, 1967, 20 SCRA 383.)
U.S. Supreme Court Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) Barnes v. Glen Theatre, Inc.
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No. 90-26
904 F.2d 1081 (CA9 1990), reversed.
Argued Jan. 8, 1991
The CHIEF JUSTICE, joined by JUSTICE O'CONNOR and JUSTICE KENNEDY, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 501 U. S. 565-572.
Decided June 21, 1991 501 U.S. 560
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law - which requires respondent dancers to wear pasties and a Gstring -- asserting that the law's prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed.
(a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e.g., Doran v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 932. Pp. 501 U. S. 565-566. (b) Applying the four-part test of United States v. O'Brien, 391 U. S. 367, 391 U. S. 376-377 -- which rejected the contention that symbolic speech is entitled to full First Amendment protection -- the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation Page 501 U. S. 561
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has been upheld. See, e.g., Paris Adult Theatre I v. Slaton,413 U. S. 49, 413 U. S. 61. This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 501 U. S. 566-572. JUSTICE SCALIA concluded that the statute -- as a general law regulating conduct and not specifically directed at expression, either in practice or on its face -- is not subject to normal First Amendment scrutiny, and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872. There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 501 U. S. 572-580. JUSTICE SOUTER, agreeing that the nude danci ng at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U. S. 367, is the appropriate analysis to determine the actual protection required,
concluded that the State's interest in preventing the secondary effects of adult entertainment establishments -- prostitution, sexual assaults, and other criminal activity -- is sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have co ncluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U. S. 41, 475 U. S. 50. Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id. at 475 U. S. 48. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 501 U. S. 581-587. Page 501 U. S. 562 REHNQUIST, C.J., announced the judgment of the Court and delivered an opinion in which O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., post, p. 501 U. S. 572, and SOUTER, J., post, p. 501 U. S. 581, filed opinions concurring in the judgment. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 501 U. S. 587.
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CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these Page 501 U. S. 563 establishments. They claim that the First Amendment's guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim. The facts appear from the pleadings and findings of the District Court, and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty Kat) is located in the city of South Bend. It sells alcoholic beverages and presents "go-go dancing." Its proprietor desires to present "totally nude dancing," but an applicable Indiana statute regulating public nudity requires that the dancers wear "pasties" and a "G-string" when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so. Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is
supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." The live entertainment at the "bookstore" consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre's dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, Ind.Code § 35-45-4-1 Page 501 U. S. 564 (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge, [Footnote 1] and remanded to the District Court in order for the plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986). On remand, the District Court concluded that 149
Page 501 U. S. 565 "the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States," and rendered judgment in favor of the defendants. Glen Theatre, Inc. v. Civil City of South Bend, 695 F.Supp. 414, 419 (ND Ind.1988). The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. Miller v. Civil City of South Bend, 887 F.2d 826 (CA7 1989). The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Miller v. Civil City of South Bend, 904 F.2d 1081 (CA7 1990). We granted certiorari, 498 U.S. 807 (1990), and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and a G-string does not violate the First Amendment. Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 932 (1975), we said:
"[A]lthough the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U. S. 109, 409 U. S. 118 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances." In Schad v. Borough of Mount Ephraim, 452 U. S. 61, 452 U. S. 66 (1981), we said that "[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation" (citations omitted). These statements support the conclusion of the Court of Appeals Page 501 U. S. 566 that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so. This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity. Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and the re are no nonconsenting viewers. Respondents contend that, while 150
the state may license establishments such as the ones involved here and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioner contends, on the other hand, that Indiana's restriction on nude dancing is a valid "time, place or manner" restriction under cases such as Clark v. Community for Creative NonViolence, 468 U. S. 288 (1984).
rejected his contention that symbolic speech is entitled to full First Amendment protection, saying:
O'Brien burned his draft card on the steps of the South Boston courthouse in the presence of a sizable crowd, and
"[E]ven on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that, when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."
Page 501 U. S. 567
Id. at 391 U. S. 376376-377 (footnotes omitted).
was convicted of violating a statute that prohibited the knowing destruction or mutilation of such a card. He claimed that his conviction was contrary to the First Amendment because his act was "symbolic speech" -- expressive conduct. The court
Applying the four-part O'Brien test enunciated above, we find that Indiana's public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State, and furthers substantial governmental interests. It is
The "time, place, or manner" test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a "public forum," Ward v. Rock Against Racism, 491 U. S. 781, 781, 491 U. S. 791 (1989), although we have on at least one occasion applied it to conduct occurring on private property. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). In Clark, we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O'Brien, 391 U. S. 367 (1968), and we turn, therefore, to the rule enunciated in O'Brien.
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impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted Page 501 U. S. 568 this statute, for Indiana does not record legislative history, and the state's highest court has not shed additional light on the statute's purpose. Nonetheless, the statute's purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U. S. 507, 507, 333 U. S. 515( 515(1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng.Rep. 1036 (K.B.1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana's public indecency statute shows that it predates barroom nude dancing, and was enacted as a general prohibition. At least as early as 1831, Indiana had a statute punishing "open and notorious lewdness, or . . . any grossly scandalous and public indecency." Rev.Laws of Ind., ch. 26, § 60 (1831); Ind.Rev.Stat., ch. 53, § 81 (1834). A gap during which no statute was in effect was filled by the Indiana Supreme Court in Ardery v. State, 56 Ind. 328 (1877), which
held that the court could sustain a conviction for exhibition of "privates" in the presence of others. The court traced the offense to the Bible story of Adam Adam and Eve. Id. at 329-330. In 1881, a statute was enacted that would remain essentially unchanged for nearly a century: "Whoever, being over fourteen years of age, makes an indecent exposure of his person in a public place, or in any place where there are other persons to be offended or annoyed thereby, . . . is guilty of public indecency. . . ." 1881 Ind.Acts, ch. 37, § 90. Page 501 U. S. 569 The language quoted above remained unchanged until it was simultaneously repealed and replaced with the present statute in 1976. 1976 Ind.Acts, Pub.L. 148, Art. 45, ch. 4, § 1. [Footnote 2] 2] This and other public indecency statutes were designed to protect morals and public order. The traditional police po wer of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton, 413 U. S. 49,, 413 U. S. 61 (1973), we said: 49 "In deciding Roth [v. United States, 354 U. S. 476 (1957)], this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect 'the social interest in order and morality.' [Id.] at 354 U. S. 485. 485."
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(Emphasis omitted.) And in Bowers v. Hardwick, 478 U. S. 186,, 478 U. S. 196 (1986), we said: 186 "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. Page 501 U. S. 570 This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct -- including appearing in the nude in public -- are "expressive," and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of "expressive conduct" in O'Brien, saying: "We cannot accept the view that an apparently limitless variety of conduct can be labelled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 391 U.S. at 391 U. S. 376. 376. And in Dallas v. Stanglin, 490 U. S. 19, 19, we further observed:
"It is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons coming together to engage in recreational dancing -- is not protected by the First Amendment." 490 U.S. 19, 490 U. S. 25. 25. Respondents contend that, even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the state seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O'Brien test, viz: the governmental interest must be unrelated to the suppression of free expression. But we do not think that, when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed b y the dancers. Page 501 U. S. 571 Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the 153
dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity. This conclusion is buttressed by a reference to the facts of O'Brien. An act of Congress provided that anyone who knowingly destroyed a selective service registration certificate committed an offense. O'Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his anti-war beliefs. This Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the selective service system. O'Brien's deliberate destruction of his certificate frustrated this purpose and "for this noncommunicative aspect of his conduct, and for nothing else, he was convicted." 391 U.S. at 391 U. S. 382. 382. It was assumed that O'Brien's act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, 391 U.S. at 391 U. S. 382, 382, but it was for the noncommunicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude.
The fourth part of the O'Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, Page 501 U. S. 572 the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is "narrowly tailored;" Indiana's requirement that the dancers wear at least pasties and a Gstring is modest, and the bare minimum necessary to achieve the state's purpose. The judgment of the Court of Appeals accordingly is Reversed. [Footnote 1] 1] The Indiana Supreme Court appeared to give the public indecency statute a limiting construction to save it from a facial overbreadth attack: "There is no right to appear nude in public. Rather, it may be constitutionally required to tolerate or to allow some nudity as a part of some larger form of expression meriting protection, when the communication of ideas is involved."
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State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587 (1979) (emphasis added), appeals dism'd sub nom. Clark v. Indiana, 446 U.S. 931, and Dove v. Indiana, 449 U.S. 806 (1980).
[Footnote 2] Indiana Code § 35-451 (1988) provides: "Public Indecency"
Five years after Baysinger, however, the Indiana Supreme Court reversed a decision of the Indiana Court of Appeals holding that the statute did "not apply to activity such as the theatrical appearances involved herein, which may not be prohibited absent a finding of obscenity," in a case involving a partially nude dance in the "Miss Erotica of Fort Wayne" contest. Erhardt v. State,468 N.E.2d 224 (Ind.1984). The Indiana Supreme Court did not discuss the constitutional issues beyond a cursory comment that the statute had been up held against constitutional attack in Baysinger, and Erhardt's conduct fell within the statutory prohibition. Justice Hunter dissented, arguing that "a public indecency statute which prohibits nudity in any public place is unconstitutionally overbroad. My reasons for so concluding have already been articulated in State v. Baysinger,(1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting)." Id. at 225-226, 397 N.E.2d 580. Justice DeBruler expressed similar views in his dissent in Erhardt. Ibid. Therefore, the Indiana Supreme Court did not affirmatively limit the reach of the statute in Baysinger, but merely said that, to the extent the First Amendment would require it, the statute might be unconstitutional as applied to some activities.
"Sec. 1. (a) A person who knowingly or intentionally, in a public place:" "(1) engages in sexual intercourse;" "(2) engages in deviate sexual conduct;" "(3) appears in a state of nudity; or" "(4) fondles the genitals of himself or another person;" "commits public indecency, a Class A misdemeanor." "(b) 'Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state." JUSTICE SCALIA, concurring in the judgment. I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of FirstAmendment scrutiny, but because, as a general law regulating
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conduct and not specifically directed at expression, it is not subject to First-Amendment scrutiny at all.
I Indiana's public indecency statute provides: "(a) A person who knowingly or intentionally, in a public place:" "(1) engages in sexual intercourse;" "(2) engages in deviate sexual conduct;" "(3) appears in a state of nudity; or" "(4) fondles the genitals of himself or another person;" "commits public indecency, a Class A misdemeanor." "(b) 'Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state." Ind.Code § 35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below:
Page 501 U. S. 573 does not regulate dancing. It regulates public nudity. . . . Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." Miller v. Civil City of South Bend, 904 F.2d 1081, 1120 (CA7 1990) (Easterbrook, J., dissenting). The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit "message of eroticism," so long as he does not commit any of the four specified acts in the process. [Footnote 2/1] Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to r un afoul of traditional understanding of "the freedom of speech." Public indecency -- including public nudity -- has long been an offense at common law. See 50 Am.Jur.2d 449, 472-474 (1970); 93 A.L.R. 996, 997-998 (1934); Winters v. New York, 333 U. S. 507, 333 U. S. 515 (1948). Indiana's first public nudity statute, Rev.Laws of Indiana, ch. 26, § 60 (1831), predated by many years the appearance of nud e barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to Page 501 U. S. 574
"Indiana 156
the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F.2d at 1120, 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See Bond v. State, 515 N.E.2d 856, 857 (Ind.1987); In re Levinson, 444 N.E.2d 1175, 1176 (Ind.1983); Preston v. State, 259 Ind. 353, 354-355, 287 N.E.2d 347, 348 (1972); Thomas v. State, 238 Ind. 658, 659660, 154 N.E.2d 503, 504-505 (1958); Blanton v. State, 533 N.E.2d 190, 191 (Ind.App.1989); Sweeney v. State, 486 N.E.2d 651, 652 (Ind.App.1985); Thompson v. State, 482 N.E.2d 1372, 1373-1374 (Ind.App.1985); Adims v. State, 461 N.E.2d 740, 741-742 (Ind.App.1984); State v. Elliott, 435 N.E.2d 302, 304 (Ind.App.1982); Lasko v. State, 409 N.E.2d 1124, 1126 (Ind.App.1980). [Footnote 2/2] The dissent confidently asserts, post at 501 U. S. 590-591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that, since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply, and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no
Page 501 U. S. 575 basis for thinking that our society has ever shared that Thoreauvian "you may do what you like so long as it does not injure someone else" beau ideal -- much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them) there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "moralit y." See Bowers v. Hardwick, 478 U. S. 186, 478 U. S. 196 (1986) (upholding prohibition of private homosexual sodomy enacted solely on "the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable"). See also Paris Adult Theatre I v. Slaton, 413 U. S. 49, 413 U. S. 68, n. 15 (1973); Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238, and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) (opinion of Bork, J.). The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that 157
people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication. [Footnote 2/3]
expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or even -- as some of our cases have suggested, see e.g., United States v. O'Brien, 391 U. S. 367, 391 U. S. 377 (1968) -- that it be justified by an "important or substantial"
Page 501 U. S. 576
Page 501 U. S. 577
II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not, in my view, implicate the First Amendment.
government interest. Nor do our holdings require such justification: we have never invalidated the applica tion of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest.
The First Amendment explicitly protects "the freedom of speech [and] of the press" -- oral and written speech -- not "expressive conduct." When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication (for instance, to reduce noise, see Saia v. New York, 334 U. S. 558, 334 U. S. 561 (1948), to regulate election campaigns, see Buckley v. Valeo, 424 U. S. 1, 424 U. S. 16 (1976), or to prevent littering, see Schneider v. State, 308 U. S. 147, 308 U. S. 163 (1939)), we insist that it meet the high First-Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose -- if only expressive of the fact that the actor disagrees with the prohibition. See, e.g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 609 (1984) (nude sunbathers challenging public indecency law claimed their "message" was that nudity is not indecent). It cannot reasonably be demanded, therefore, that every restriction of
This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e.g., United States v. Eichman, 496 U. S. 310 (1990) (burning flag); Texas v. Johnson, 491 U. S. 397 (1989) (same); Spence v. Washington, 418 U. S. 405 (1974) (defacing flag); Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U. S. 131 (1966) (participating in silent sitin); Stromberg v. California, 283 U. S. 359 (1931) (flying a red flag). [Footnote 2/4] In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however -- where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons -- we have allowed the regulation to 158
stand. O'Brien, 391 U.S. at 391 U. S. 377 (law banning destruction of draft card upheld in application against card burning to protest Page 501 U. S. 578 war); FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411 (1990) (Sherman Act upheld in application against restraint of trade to protest low pay); cf. United States v. Albertini, 472 U. S. 675, 472 U. S. 687-688 (1985) (rule barring petitioner from military base upheld in application against entrance on base to protest war); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize plight of homeless). As we clearly expressed the point in Johnson:
"the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription." Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C.19, 55-56, 703 F.2d 586, 622-623 (1983) (en banc) (Scalia, J., dissenting) (footnote omitted; emphasis omitted), rev'd, 468 U. S. Community for Creative NonViolence, 468 U. S. 288 (1984). Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation Page 501 U. S. 579
"The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription." 491 U.S. at 491 U. S. 406 (internal quotations and citations omitted; emphasis in original). All our holdings (though admittedly not some of our discussion) support the conclusion that
(which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of Free Exercise. In Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry 159
out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" Id. at 494 U. S. 885, quoting Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 485 U. S. 451 (1988); see also Minersville School District v. Gobitis, 310 U. S. 586, 310 U. S. 594-595 (1940) (Frankfurter, J.) ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs."). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obe yed.
III While I do not think the plurality's conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: the government interest in the regulation must be "important or substantial,'" ante at 501 U. S. 567, quoting O'Brien, 391 U.S. at 391 U. S. 377. As I have indicated,
I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the "importance" of government interests -- and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the "importance" of the State's interest here, see ante at 501 U. S. 569, is in point. Paris Adult Theatre I v. Slaton, 413 U.S. at 413 U. S. 61, and Bowers v. Hardwick, 478 U.S. at 478 U. S. 196, did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly "important" or "substantial," or amounted to anything more than a rational basis for regulation. Slaton involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see Roth v. United States, 354 U. S. 476 (1957); the State's prohibition could therefore be invalidated only if it had no rational basis. We found that the State's "right . . . to maintain a decent society" provided a "legitimate" basis for regulation -- even as to obscene material viewed by consenting adults. 413 U.S. at 413 U. S. 59-60. In Bowers, we held that, since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. 478 U.S. at 478 U. S. 196. I would uphold the Indiana statute on precisely the same ground: moral opposition to nudity supplies a rational basis for its prohibition, and since the First
Page 501 U. S. 580 160
Amendment has no application to this case, no more than that is needed. **** Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct Page 501 U. S. 581 as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. [Footnote 2/1] Respondents assert that the statute cannot be characterized as a general regulation of conduct, unrelated to suppression of expression, because one defense put forward in oral argument below by the attorney general referred to the "message of eroticism" conveyed by respondents. But that argument seemed to go to whether the statute could constitutionally be applied to the present performances, rather than to what was the purpose of the legislation. Moreover, the State's argument below was in the alternative: (1) that the statute does not implicate the First Amendment because it is a neutral rule not directed at expression, and (2) that the statute in any event survives First Amendment scrutiny because of the State's interest in suppressing nude barroom dancing. The second argument can
be claimed to contradict the first (though I think it does not); but it certainly does not waive or abandon it. In an y case, the clear purpose shown by both the text and historical use of the statute cannot be refuted by a litigating statement in a single case. [Footnote 2/2] Respondents also contend that the statute, as interpreted, is not content-neutral in the expressive conduct to which it applies, since it allegedly does not apply to nudity in theatrical productions. See State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587 (1979). I am not sure that theater versus nontheater represents a distinction based on content, rather than format, but assuming that it does, the argument nonetheless fails for the reason the plurality describes, ante at 501 U. S. 564, n. 1. [Footnote 2/3] The dissent, post at 501 U. S. 590, 501 U. S. 595-596 also misunderstands what is meant by the term "general law." I do not mean that the law restricts the targeted conduct in all places at all times. A law is "general" for the present purposes if it regulates conduct without regard to whether that conduct is expressive. Concededly, Indiana bans nudity in public places, but not within the privacy of the home. (That is not surprising, since the common law offense, and the traditional moral prohibition, runs against public nudity, not against all nudity. E.g., 50 Am.Jur.2d at 472-474.) But that confirms, rather than refutes, the general nature of the law: one may not 161
go nude in public, whether or not one intends thereby to convey a message, and similarly one may go nude in private, again whether or not that nudity is expressive. [Footnote 2/4] It is easy to conclude that conduct has been forbidden because of its communicative attributes when the conduct in question is what the Court has called "inherently expressive," and what I would prefer to call "conventionally expressive" -- such as flying a red flag. I mean by that phrase (as I assume the Court means by "inherently expressive") conduct that is normally engaged in for the purpose of communicating an idea, or perhaps an emotion, to someone else. I am not sure whether dancing fits that description, see Dallas v. Stanglin, 490 U. S. 19, 490 U. S. 24 (1989) (social dance group "do[es] not involve the sort of expressive association that the First Amendment has been held to protect"). But even if it does, this law is directed against nudity, not dancing. Nudity is not normally engaged in for the purpose of communicating an idea or an emotion. JUSTICE SOUTER, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, Dallas v. Stanglin, 490 U. S. 19, 490 U. S. 24-25 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience
gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so, the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nud e will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a strip-tease, are integrated into the dance and its expressive function. Thus, I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. Page 501 U. S. 582 I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United States 162
v. O'Brien,391 U. S. 367 (1968), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments. It is, of course, true that this justification has not been articulated by Indiana's legislature or by its courts. As the plurality observes, "Indiana does not record legislative history, and the state's highest court has not shed additional light on the statute's purpose," ante at 501 U. S. 568. While it is certainly sound in such circumstances to infer general purposes "of protecting societal order and morality . . . from [the statute's] text and history," ibid., I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity." Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the
challenged application of the statute may be constitutional. Cf. McGowan v. Maryland, 366 U. S. 420 Page 501 U. S. 583 (1961). At least as to the regulation of expressive conduct, [Footnote 3/1] "[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its ex act form if the same or another legislator made a 'wiser' speech about it." O'Brien, supra, 391 U.S. at 391 U. S. 384. In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O'Brien to justify the State's enforcement of the statute against the type of adult entertainment at issue here. At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O'Brien criterion. See id. at 391 U. S. 377. The second O'Brien prong asks whether the regulation "furthers an important or substantial governmental interest." Ibid. The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here "furthers" that interest. I believe that our cases have addressed this question sufficiently to establish that it does.
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In Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), we upheld a city's zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment by protecting approximately 95% of the city's area from the placement of motion picture theaters emphasizing "matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" . . . for observation by patrons therein.'" Id. at 475 U. S. 44. Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems Page 501 U. S. 584 that would be caused by adult theaters in that city. Rather, "Renton was entitled to rely on the experiences of Seattle and other cities," id. at 475 U. S. 51, which demonstrated the harmful secondary effects correlated with the presence "of even one [adult] theater in a given neighborhood." Id. at 475 U. S. 50; cf. Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 71, n. 34 (1976) (legislative finding that "a concentration of `adult' movie theaters causes the area to deteriorate and become a focus of crime"); California v. LaRue, 409 U. S. 109, 409 U. S. 111 (1972) (administrative findings of criminal activity associated with adult entertainment). The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Mini Theatres, and LaRue. It therefore is no leap to
say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e.g., United States v. Marren, 890 F.2d 924, 926 (CA7 1989) (prostitution associated with nude dancing establishment); United States v. Doerr, 886 F.2d 944, 949 (CA7 1989) (same). In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition that "society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," American Mini Theatres, supra, 427 U.S. at 427 U. S. 70, I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every Page 501 U. S. 585 case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O'Brien. [Footnote 3/2]
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The third O'Brien condition is that the governmental interest be "unrelated to the suppression of free expression," 391 U.S. at 391 U. S. 377, and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects "because . . . creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution," post at 501 U. S. 592, and that regulation of expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. Ibid. The major premise of the dissent's reasoning may be correct, but its minor premise describing the causal theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation Page 501 U. S. 586 actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of
adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies, regardless of whether those bodies are engaged in expression or not. In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. Because the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest in regulating was content-neutral (a determination similar to the "unrelated to the suppression of free expression" determination here, see Clark v. Community for Creative Non-Violence, 468 U. S. 288, 468 U. S. 298, and n. 8 (1984)) because it was "justified without reference to the content of the regulated speech." 475 U.S. at 475 U. S. 48 (emphasis in original). We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the "secondary effects" justification means that enforcement of the Indiana statute against nude dancing is "justified without reference to the content of the regulated [expression]," ibid. (emphasis omitted), which is sufficient, at least in the context of sexually explicit expression, [Footnote 3/3] to satisfy the third prong of the O'Brien test. 165
Page 501 U. S. 587 The fourth O'Brien condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose.
open to question if the State were to seek to enforce the statute by barring expressive nudity in classes of productions that could not readily be analogized to the adult films at issue in Renton v. Playtime Theatres, Inc., 475 U. S. 41(1986). It is difficult to see, for example, how the enforcement of Indiana's statute against nudity in a production of "Hair" or "Equus" somewhere other than an "adult" theater would further the State's interest in avoiding harmful secondary effects, in the absence of evidence that expressive nudity outside the context of Renton-type adult entertainment was correlated with such secondary effects. [Footnote 3/3]
[Footnote 3/1]
I reach this conclusion again mindful, as was the Court in Renton, that the protection of sexually explicit expression may be of lesser societal importance than the protection of other forms of expression. See Renton, supra, at 475 U. S. 49, and n. 2, citing Young v. American Mini Theatres, Inc.,427 U. S. 50, 427 U. S. 70 (1976).
Cf., e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking down state statute on Establishment Clause grounds due to impermissible legislative intent).
JUSTICE WHITE, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.
[Footnote 3/2]
The first question presented to us in this case is whether nonobscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment. The Court of Appeals held that it is, observing that our prior decisions permit no other conclusion. Not surprisingly, then, the Court now concedes that "nude dancing of the kind sought
Accordingly, I find O'Brien satisfied, and concur in the judgment.
Because there is no overbreadth challenge before us, we are not called upon to decide whether the application of the statute would be valid in other contexts. It is enough, then, to say that the secondary effects rationale on which I rely here would be
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to be performed here is expressive conduct within the outer perimeters of the First Amendment. . . ." Ante at 501 U. S. 566. This is no more than recognizing, as the Seventh Circuit observed, that dancing is an ancient art form and "inherently embodies the expression and communication of ideas and emotions." Miller v. Civil City of South Bend, 904 F.2d 1081, 1087 (1990) (en banc). [Footnote 4/1] Page 501 U. S. 588 Having arrived at the conclusion that nude dancing performed as entertainment enjoys First Amendment protection, the Court states that it must "determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity." Ante at 501 U. S. 566. For guidance, the plurality turns to United States v. O'Brien, 391 U. S. 367(1968), which held that expressive conduct could be narrowly regulated or forbidden in pursuit of an important or substantial governmental interest that is unrelated to the content of the expression. The plurality finds that the Indiana statute satisfies the O'Brien test in all respects. The plurality acknowledges that it is impossible to discern the exact state interests which the Indiana legislature had in mind when it enacted the Indiana statute, but the Court nonetheless concludes that it is clear from the statute's text and history that
the law's purpose is to protect "societal order and morality." Ante at 501 U. S. 568. The plurality goes on to Page 501 U. S. 589 conclude that Indiana's statute "was enacted as a general prohibition," ante at 501 U. S. 568(emphasis added), on people appearing in the nude among strangers in public places. The plurality then points to cases in which we upheld legislation based on the State's police power, and ultimatel y concludes that the Indiana statute "furthers a substantial government interest in protecting order and morality." Ante at 569. The plurality also holds that the basis for banning nude dancing is unrelated to free expression, and that it is narrowly drawn to serve the State's interest. The plurality's analysis is erroneous in several respects. Both the Court and JUSTICE SCALIA in his concurring opinion overlook a fundamental and critical aspect of our cases upholding the States' exercise of their police powers. None of the cases they rely upon, including O'Brien and Bowers v. Hardwick, 478 U. S. 186 (1986), involved anything less than truly general proscriptions on individual conduct. In O'Brien, for example, individuals were prohibited from destroying their draft cards at any time and in any place, even in completely private places such as the home. Likewise, in Bowers, the State prohibited sodomy, regardless of where the conduct might occur, including the home, as was true in that case. The same is true of cases like Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), which, though not applicable here because it did 167
not involve any claim that the peyote users were engaged in expressive activity, recognized that the State's interests in preventing the use of illegal drugs extends even into the home. By contrast, in this case, Indiana does not suggest that its statute applies to, or could be applied to, nudity wherever it occurs, including the home. We do not understand the Court or JUSTICE SCALIA to be suggesting that Indiana could constitutionally enact such an intrusive prohibition, nor do we think such a suggestion would be tenable in light of our decision in Stanley v. Georgia, 394 U. S. 557, (1969), in which we held that States could not punish the Page 501 U. S. 590 mere possession of obscenity in the privacy of one's own home. We are told by the Attorney General of Indiana that, in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979), the Indiana Supreme Court held that the statute at issue here cannot and does not prohibit nudity as a part of some larger form of expression meriting protection when the communication of ideas is involved. Brief for Petitioners 25, 30-31; Reply Brief for Petitioners 9-11. Petitioners also state that the evils sought to be avoided by applying the statute in this case would not obtain in the case of theatrical productions, such as Salome or Hair. Id. at 11-12. Neither is there any evidence that the State has attempted to apply the statute to nudity in performances such as plays, ballets or operas. "No arrests have ever been made for nudity as part of a play or ballet." App.19 (affidavit of Sgt. Timothy Corbett).
Thus, the Indiana statute is not a general prohibition of the type we have upheld in prior cases. As a result, the Court's and JUSTICE SCALIA's simple references to the State's general interest in promoting societal order and morality is not sufficient justification for a statute which concededly reaches a significant amount of protected expressive activity. Instead, in applying the O'Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate this expressive conduct in a less than general statute. In other words, when the State enacts a law which draws a line between expressive conduct which is regulated and nonexpressive conduct of the same type which is not regulated, O'Brien places the burden on the State to justify the distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate. Legislators do not just randomly select certain conduct for proscription; they have reasons for doing so, and those reasons illuminate the purpose of the law that is passed. Indeed, a law may have multiple purposes. The purpose of Page 501 U. S. 591 forbidding people from appearing nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and ba rrooms, since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. This 168
is why Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), is of no help to the State: "In Clark, . . . the damage to the parks was the same whether the sleepers were camping out for fun, were in fact homeless, or wished by sleeping in the park to make a symbolic statement on behalf of the homeless." 904 F.2d at 1103 (Posner, J., concurring). That cannot be said in this case: the perceived damage to the public interest caused by appearing nude on the streets or in the parks, as I have said, is not what the State seeks to avoid in preventing nude dancing in theaters and taverns. There the perceived harm is the communicative aspect of the erotic dance. As the State now tells us, and as JUSTICE SOUTER agrees, the State's goal in applying what it describes as its "content-neutral" statute to the nude dancing in this case is "deterrence of prostitution, sexual assaults, criminal activity, degradation of women, and other activities which break down family structure." Reply Brief for Petitioners 11. The attainment of these goals, however, depends on preventing an expressive activity. The plurality nevertheless holds that the third requirement of the O'Brien test, that the governmental interest be unrelated to the suppression of free expression, is satisfied, because, in applying the statute to nude dancing, the State is not "proscribing nudity because of the erotic message conveyed by the dancers." Ante at 501 U. S. 570. The plurality suggests that this is so because the State does not ban dancing that sends an erotic message; it is only nude erotic dancing that is forbidden. The perceived evil is not erotic dancing, but public
Page 501 U. S. 592 nudity, which may be prohibited despite any incidental impact on expressive activity. This analysis is transparently erroneous. In arriving at its conclusion, the Court concedes that nude dancing conveys an erotic message, and concedes that the message would be muted if the dancers wore pasties and Gstrings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the performers. As Judge Posner argued in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thoughts that a nude dancing performance evokes. Id. at 1090-1098. The sight of a fully clothed, or even a partially clothed, dancer generally will have a far different impact on a spectator than that of a nude dancer, even if the same dance is performed. The nudity is itself an expressive component of the dance, not merely incidental "conduct." We have previously pointed out that "[n]udity alone' does not place otherwise protected material outside the mantle of the First Amendment." Schad v. Mt. Ephraim, 452 U. S. 61, 452 U. S. 66 (1981). This being the case, it cannot be that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings, but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It is only because nude dancing performan ces may generate emotions and feelings of eroticism and sensuality 169
among the spectators that the State seeks to regulate such expressive activity, apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of nude dancing performances cannot Page 501 U. S. 593 be neatly pigeonholed as mere "conduct" independ ent of any expressive component of the dance. [Footnote 4/2] That fact dictates the level of First Amendment protection to be accorded the performances at issue here. In Texas v. Johnson, 491 U. S. 397, 491 U. S. 411-412 (1989), the Court observed: "Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. . . . We must therefore subject the State's asserted interest in preserving the special symbolic character of the flag to 'the most exacting scrutiny.' Boos v. Barry, 485 U.S. [312], 485 U. S. 321 [(1988)]." Content-based restrictions "will be upheld only if narrowly drawn to accomplish a compelling governmental interest." United States v. Grace, 461 U. S. 171, 461 U. S. 177 (1983); Sable Communications of California, Inc. v. FCC, 492 U. S. 115, 492 U. S. 126 (1989). Nothing could be clearer from our cases.
That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine. The plurality's assessment of the artistic merits of nude dancing performances should not be the determining factor in decid ing this case. In the words of Justice Harlan, "it is largely because governmental officials cannot make principled decisions Page 501 U. S. 594 in this area that the Constitution leaves matters of taste and style so largely to the individual." Cohen v. California, 403 U. S. 15, 403 U. S. 25 (1971). "[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who . . . wants some 'entertainment' with his beer or shot of rye." Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3 (CA2 1974), aff'd in part, Doran v. Salem Inn, Inc., 422 U. S. 922 (1975). The plurality and JUSTICE SOUTER do not go beyond saying that the state interests asserted here are important and substantial. But even if there were compelling interests, the
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Indiana statute is not narrowly drawn. If the State is genuinely concerned with prostitution and associated evils, as JUSTICE SOUTER seems to think, or the type of conduct that was occurring in California v. LaRue, 409 U. S. 109 (1972), it can adopt restrictions that do not interfere with the expressiveness of nonobscene nude dancing performances. For instance, the State could perhaps require that, while performing, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. Cf. Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). Likewise, the State clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny. See Frisby v. Schultz, 487 U. S. 474, 487 U. S. 485 (1988). Furthermore, if nude dancing in barrooms as compared with other establishments, is the most worrisome problem, the State could invoke its Twenty-first Amendment powers and impose appropriate regulation. New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per curiam); California v. LaRue, supra. Page 501 U. S. 595 As I see it, our cases require us to affirm, absent a compelling state interest supporting the statute. Neither the Court nor the State suggest that the statute could withstand scrutiny under that standard.
JUSTICE SCALIA's views are similar to those of the Court, and suffer from the same defects. The Justice asserts that a general law barring specified conduct does not implicate the First Amendment unless the purpose of the law is to suppress the expressive quality of the forbidden conduct, and that, absent such purpose, First Amendment protections are not triggered simply because the incidental effect of the law is to proscribe conduct that is unquestionably expressive. Cf. Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C. 19, 703 F.2d 586, 622-623 (1983) (SCALIA, J., dissenting). The application of the Justice's proposition to this case is simple to state: the statute at issue is a general law banning nude appearances in public places, including barrooms and theaters. There is no showing that the purpose of this general law was to regulate expressive conduct; hence, the First Amendment is irrelevant, and nude dancing in theaters and barrooms may be forbidden irrespective of the expressiveness of the dancing. As I have pointed out, however, the premise for the Justice's position -- that the statute is a general law of the type our cases contemplate -- is nonexistent in this case. Reference to JUSTICE SCALIA's own hypothetical makes this clear. We agree with JUSTICE SCALIA that the Indiana statu te would not permit 60,000 consenting Hoosiers to expose themselves to each other in the Hoosierdome. No one can doubt, however, that those same 60,000 Hoosiers would be perfectly free to drive to their respective homes all across Indiana and, once there, to parade around, cavort, and revel in the nude for hours in front of relatives and friends. It is difficult to see why the State's interest in morality is any less in that situation, 171
especially if, as JUSTICE SCALIA seems to suggest, nudity is inherently evil, but clearly the statute does
Accordingly, I would affirm the judgment of the Court of Appeals, and dissent from this Court's judgment.
Page 501 U. S. 596
[Footnote 4/1]
not reach such activity. As we pointed out earlier, the State's failure to enact a truly general proscription requires closer scrutiny of the reasons for the distinctions the State has drawn. See supra at 501 U. S. 590.
JUSTICE SCALIA suggests that performance dancing is not inherently expressive activity, see anteat 501 U. S. 577, n. 4, but the Court of Appeals has the better view:
As explained previously, the purpose of applying the law to the nude dancing performances in respondents' establishments is to prevent their customers from being exposed to the distinctive communicative aspects of nude dancing. That being the case, JUSTICE SCALIA's observation is fully applicable here: "Where government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional." Ante at 501 U. S. 577. The O'Brien decision does not help JUSTICE SCALIA. Indeed, his position, like the Court's, would eviscerate the O'Brien test. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), is likewise not on point. The Indiana law, as applied to nude dancing, targets the expressive activity itself; in Indiana, nudity in a dancing performance is a crime because of the message such dancing communicates. In Smith, the use of drugs was not criminal because the use was part of or occurred within the course of an otherwise protected religious ceremony, but because a general law made it so, and was supported by the same interests in the religious context as in others.
"Dance has been defined as 'the art of moving the body in a rhythmical way, usually to music, to express an emotion or idea, to narrate a story, or simply to take delight in the movement itself.' 16 The New Encyclopedia Britannica 935 (1989). Inherently, it is the communication of emotion or ideas. At the root of all" "[t]he varied manifestations of dancing . . . lies the common impulse to resort to movement to externalise states which we cannot externalise by rational means. This is basic dance." "Martin, J., Introduction to the Dance (1939). Aristotle recognized in Poetics that the purpose of dance is 'to represent men's character as well as what they do and suffer.' The raw communicative power of dance was noted by the French poet Stephane Mallarme, who declared that the dancer 'writing with her body . . . suggests things which the written work could express only in several paragraphs of dialogue or descriptive prose.'" 904 F.2d at 1085-1086. JUSTICE SCALIA cites Dallas v. Stanglin, 490 U. S. 19 (1989), but that decision dealt with
172
social dancing, not performance dancing; and the submission in that case, which we rejected, was not that social dancing was an expressive activity, but that plaintiff's associational rights were violated by restricting admission to dance halls on the basis of age. The Justice also asserts that, even if dancing is inherently expressive, nudity is not. The statement may be true, but it tells us nothing about dancing in the nude. [Footnote 4/2] JUSTICE SOUTER agrees with the Court that the third requirement of the O'Brien test is satisfied, but only because he is not certain that there is a causal connection between the message conveyed by nude dancing and the evils which the State is seeking to prevent. See ante at 501 U. S. 585. JUSTICE SOUTER's analysis is at least as flawed as that of the Court. If JUSTICE SOUTER is correct that there is no causal connection between the message conveyed by the nude dancing at issue here and the negative secondary effects that the State desires to regulate, the State does not have even a rational basis for its absolute prohibition on nude dancing that is admittedly expressive. Furthermore, if the real problem is the "concentration of crowds of men predisposed to the" designated evils, ante at 501 U. S. 586, then the First Amendment requires that the State address that problem in a fashion that does not include banning an entire category of expressive activity. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986).
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Argued April 18, 19, 1978 Decided July 3, 1978 438 U.S. 726
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus
U.S. Supreme Court FCC v. Pacifica Foundation, 438 U.S. 726 (1978) Federal Communications Commission v. Pacifica Foundation
A radio station of respondent Pacifica Foundation (hereinafter respondent) made an afternoon broadcast of a satiric monologue, entitled "Filthy Words," which listed and repeated a variety of colloquial uses of "words you couldn't say on the public airwaves." A father who heard the broadcast while driving with his young son complained to the Federal Communications Commission (FCC), which, after forwarding the complaint for comment to and receiving a response from respondent, issued a declaratory order granting the complaint. While not imposing formal sanctions, the FCC stated that the order would be "associated with the station's license file, and, in the event subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress."
No. 77-528
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In its memorandum opinion, the FCC stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent radio broadcasts, and it advanced several reasons for treating that type of speech differently from other forms of expression. The FCC found a power to regulate indecent broadcasting, inter alia, in 18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications." The FCC characterized the language of the monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance, where the "law generally speaks to channeling behavior, rather than actually prohibiting it." The FCC found that certain words in the monologue depicted sexual and excretory activities in a particularly offensive manner, noted that they were broadcast in the early afternoon, "when children are undoubtedly in the audience," and concluded that the language, as broadcast, was indecent and prohibited by § 1464. A three-judge panel of the Court of Appeals reversed, one judge concluding that the FCC's action was invalid either on the ground that the order constituted censorship, which was expressly forbidden by § 326 of the Communications Act of 1934, or on the ground that the FCC's opinion was the functional equivalent of Page 438 U. S. 727 a rule, and, as such, was "overbroad." Another judge, who felt that § 326's censorship provision did not apply to broadcasts forbidden by § 1464, concluded that § 1464, construed narrowly as it has to be, covers only language that is obscene
or otherwise unprotected by the First Amendment. The third judge, dissenting, concluded that the FCC had correctl y condemned the daytime broadcast as indecent. Respondent contends that the broadcast was not indecent within the meaning of the statute because of the absence of prurient appeal. Held: The judgment is reversed. Pp. 438 U. S. 734-741; 438 U. S. 748-750; 438 U. S. 761-762. 181 U.S.App.D.C. 132, 556 F.2d 9, reversed. MR. JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I-III and IV-C, finding: 1. The FCC's order was an adjudication under 5 U.S.C. § 554(e) (1976 ed.), the character of which was not changed by the general statements in the memorandum opinion; nor did the FCC's action constitute rulemaking or the promulgation of regulations. Hence, the Court's review must focus on the FCC's determination that the monologue was indecent as broadcast. Pp. 438 U. S. 734-735. 2. Section 326 does not limit the FCC's authority to sanction licensees who engage in obscene, indecent, or profane broadcasting. Though the censorship ban precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. Pp. 438 U. S. 735-738.
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3. The FCC was warranted in concluding that indecent language within the meaning of § 1464 was used in the challenged broadcast. The words "obscene, indecent, or profane" are in the disjunctive, implying that each has a separate meaning. Though prurient appeal is an element of "obscene," it is not an element of "indecent," which merely refers to conconformance with accepted standards of morality. Contrary to respondent's argument, this Court, in Hamling v. United States, 418 U. S. 87, has not foreclosed a reading of § 1464 that authorizes a proscription of "indecent" language that is not obscene, for the statute involved in that case, unlike § 1464, focused upon the prurient, and dealt primarily with printed matter in sealed envelopes mailed from one individu al to another, whereas § 1464 deals with the content of public broadcasts. Pp. 438 U. S. 738-741.
1. The FCC's authority to proscribe this particular broadcast is not invalidated by the possibility that its construction of the statute may deter certain hypothetically protected broadcasts containing patently offensive references to sexual and excretory activities. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. Pp. 438 U. S. 742-743.
4. Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home, and it is impossible completely to avoid
MR. JUSTICE POWELL, joined by MR. JUSTICE BLACKMUN, concluded that the FCC's holding does not violate the First Amendment, though, being of the view that Members of this Court are not free generally to decide on the basis of its content which speech protected by the First Amendment is most valuable and therefore deserving of First Amendment protection, and which is less "valuable" and hence less deserving of protection, he is unable to join Part IV-B (or IV-A) of the opinion. Pp. 438 U. S. 761-762.
Page 438 U. S. 728 those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children. Pp. 438 U. S. 747-750. MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, concluded in Part IV-A and IV-B:
2. The First Amendment does not prohibit all governmental regulation that depends on the content of speech. Schenck v. United States, 249 U. S. 47, 249 U. S. 52. The content of respondent's broadcast, which was "vulgar," "offensive," and "shocking," is not entitled to absolute constitutional protection in all contexts; it is therefore necessary to evaluate the FCC's action in light of the content of that broadcast. Pp. 438 U. S. 744-748.
STEVENS, J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I-III and IV-C, in which BURGER, C.J., and REHNQUIST, J., joined, and in all but Parts IV-A and IV-B of which BLACKMUN and POWELL, JJ., joined, and an opin ion as to Parts IV-A and IV176
B, in which BURGER, C.J., and REHNQUIST, J., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, J., joined, post, p. 438 U. S. 755. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 438 U. S. 762. STEWART, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 438 U. S. 777. Page 438 U. S. 729 MR. JUSTICE STEVENS delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST joined (Parts IV-A and IV-B). This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene. A satiric humorist named George Carlin recorded a 12-minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience.
At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Page 438 U. S. 730 Foundation, broadcast the "Filthy Words" monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control." The complaint was forwarded to the station for comment. I n its response, Pacifica explained that the monologue had been played during a program about contemporar y society's attitude toward language, and that, immediately before its broadcast, listeners had been advised that it included "sensitive language which might be regarded as offensive to some." Pacifica characterized George Carlin as "a significant social satirist" who, "like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica stated that it was not aware of any other complaints about the broadcast.
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On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica "could have been the subject of administrative sanctions." 56 F.C.C.2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be "associated with the station's license file, and, in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress. [Footnote 1] "
"law generally speaks to channeling behavior more than actually prohibiting it. . . . [T]he concept Page 438 U. S. 732 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 o rgans, at times of the day when there is a reasonable risk that children may be in the audience."
Page 438 U. S. 731 56 F.C.C.2d at 98. [Footnote 5] In its memorandum opinion, the Commission stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent speech on the airwaves. Id. at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression, [Footnote 2] the Commission found a power to regulate indecent broadcasting in two statutes: 18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications," [Footnote 3] and 47 U.S.C. § 303(g), which requires the Commission to "encourage the larger and more effective use of radio in the public interest." [Footnote 4] The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance, where the
Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they "were broadcast at a time when children were undoubtedly in the audience (i.e., in the early afternoon)," and that the prerecorded language, with these offensive words "repeated over and over," was "deliberately broadcast." Id. at 99. In summary, the Commission stated: "We therefore hold that the language as broadcast was indecent and prohibited by 18 U.S.C. [§] 1464. [Footnote 6]" Ibid. After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that
178
Page 438 U. S. 733 it "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it." 59 F.C.C.2d 892 (1976). The Commission noted that its "declaratory order was issued in a specific factual context," and declined to comment on various hypothetical situations presented by the petition. [Footnote 7] Id. at 893. It relied on its "long-standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them." Ibid. The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U.S.App.D.C. 132, 556 F.2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act. [Footnote 8] Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule, and concluded that it was "overbroad." 181 U.S.App.D.C. at 141, 556 F.2d at 18. Chief Judge Bazelon's concurrence rested on
the Constitution. He was persuaded that § 326's prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 1464 Page 438 U. S. 734 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U.S.App.D.C. at 140-153, 556 F.2d at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language "as broadcast." Id. at 154, 556 F.2d at 31. Emphasizing the interest in protecting children not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id. at 160, and n. 18, 556 F.2d at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent. Having granted the Commission's petition for certiorari, 434 U.S. 1008, we must decide: (1) whether the scope of judicial review encompasses more than the Commission's determination that the monologue was indecent "as broadcast"; (2) whether the Commission's order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution.
I The general statements in the Commission's memorandum opinion do not change the character of its order. Its action was 179
an adjudication under 5 U.S.C. § 554(e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order "was issued in a specific factual context"; questions concerning possible action in other contexts were expressly reserved for the future. The specific holding was carefully confined to the monologue "as broadcast."
for the two statutory provisions have a common origin. Nevertheless, we analyze them separately. Section 29 of the Radio Act of 1927 provided:
"This Court . . . reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U. S. 292, 351 U. S. 297. That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, 331 U. S. 549, 331 U. S. 568 569. However appropriate
"Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication."
Page 438 U. S. 735
44 Stat. 1172.
it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U. S. 117, 324 U. S. 126. Accordingly, the focus of our review must be on the Commission's determination that the Carlin monologue was indecent as broadcast.
The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties. [Footnote 9]
II The relevant statutory questions are whether the Commission's action is forbidden "censorship" within the meaning of 47 U.S.C. § 326 and whether speech that concededly is not obscene may be restricted as "indecent" under the authority of 18 U.S.C. § 1464 (1976 ed.). The questions are not unrelated,
Page 438 U. S. 736 During the period between the original enactment of the provision in 1927 and its reenactment in the Communic ations Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to
180
subject "broadcasting matter to scrutiny prior to its release," but they concluded that the Commission's "undoubted right" to take note of past program content when considering a licensee's renewal application "is not censorship." [Footnote 10] Page 438 U. S. 737 Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction. [Footnote 11] Thus, for example, in his opinion in AntiDefamation League of B'nai B'rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169 (1968), cert. denied, 394 U.S. 930, Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaste r who persists in a course of improper programming. He explained: "This would not be prohibited 'censorship' . . . any more than would the Commission's considering on a license renewal application whether a broadcaster allowed 'coarse, vulgar, suggestive, double-meaning' programming; programs containing such material are grounds for denial of a license renewal." 131 U.S.App.D.C. at 150-151, n. 3, 403 F.2d at 173-174, n. 3. See also Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966).
Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission's power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both Page 438 U. S. 738 the anti-censorship provision and the Commission's authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language. There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted. [Footnote 12] In 1934, the anticensorship provision and the prohibition against indecent broadcasts were reenacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and reenacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anti-censorship provision. H.R.Rep. No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 409 U. S. 162. 181
We conclude, therefore, that § 326 does not limit the Commission's authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.
III The only other statutory question presented by this case is whether the afternoon broadcast of the "Filthy Words" Page 438 U. S. 739 monologue was indecent within the meaning of § 1464. [Footnote 13] Even that question is narrowly confined by the arguments of the parties. The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Commission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal. The plain language of the statute does not support Pacifica's argument. The words "obscene, indecent, or profane" are
Page 438 U. S. 740 written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality. [Footnote 14] Pacifica argues, however, that this Court has construed the term "indecent" in related statutes to mean "obscene," as that term was defined in Miller v. California, 413 U. S. 15. Pacifica relies most heavily on the construction this Court gave to 18 U.S.C. § 1461 in Hamling v. United States,418 U. S. 87. See also United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 413 U. S. 130 n. 7 (18 U.S.C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of "obscene, lewd, lascivious, indecent, filthy or vile" material. In holding that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U. S. 478. In that case, Mr. Justice Harlan recognized that § 1461 contained a variety of words with many shades of meaning. [Footnote 15] Nonetheless, he thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute, since its inception, has always been taken as aimed at obnoxiously debasing portrayals of sex." 370 U.S. at 370 U. S. 483. In Hamling, the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set
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by Miller v. California, supra, the Court adopted a construction which assured the statute's constitutionality. Page 438 U. S. 741 The reasons supporting Hamling's construction of § 1461 do not apply to § 1464. Although the history of the former revealed primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene. [Footnote 16] The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means. [Footnote 17] Because neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica's construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission's conclusion that indecent language was used in this broadcast. Page 438 U. S. 742
IV Pacifica makes two constitutional attacks on the Commission's order. First, it argues that the Commission's construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even
if Pacifica's broadcast of the "Filthy Words" monologue is not itself protected by the First Amendment. Second, Pacifica argues that, inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio. A The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was "issued in a specific factual context." 59 F.C.C.2d at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context -- it cannot be adequately judged in the abstract. The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. In that case, the Court rejected an argument that the Commission's regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters' freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program Page 438 U. S. 743 content. Radio Television News Directors Assn. v. United States, 400 F.2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this 183
case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated:
preserve the vigor of patently offensive sexual and ex cretory speech. Page 438 U. S. 744
"We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U. S. 689, 332 U. S. 694 (1948), but will deal with those problems if and when they arise." 395 U.S. at 395 U. S. 396. It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. [Footnote 18] While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 380-381. Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 61. The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is "strong medicine," to be applied "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U. S. 601, 413 U. S. 613. We decline to administer that medicine to
B When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances. [Footnote 19] For if the government has any such power, this was an appropriate occasion for its exercise. The words of the Carlin monologue are unquestionably "speech" within the meaning of the First Amendment. It is equally clear that the Commission's objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution. The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes' statement for the Court in Schenck v. United States, 249 U. S. 47, 249 U. S. 52: "We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character
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of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words Page 438 U. S. 745 that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire,315 U. S. 568. It may pay heed to the "common sense differences' between commercial speech and other varieties." Bates v. State Bar of Arizona, supra at 433 U. S. 381. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U. S. 323. Obscenity may be wholly prohibited. Miller v. California, 413 U. S. 15. And, only two Terms ago, we refused to hold that a "statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment." Young v. American Mini Theatres, Inc., supra, at 427 U. S. 52.
regulated because of its content. [Footnote 20] Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U. S. 476. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of Page 438 U. S. 746 ideas. [Footnote 21] If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content -- or even to the fact that it satirized contemporary attitudes about four-letter words [Footnote 22] -- First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. [Footnote 23] Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinski v. New Hampshire, 315 U.S. at 315 U. S. 572.
The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be 185
Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e.g., Hess v. Indiana, 414 U. S. 105. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, Page 438 U. S. 747 the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. [Footnote 24] It is a characteristic of speech such as this that both its capacity to offend and its "social value," to use Mr. Justice Murphy's term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion's lyric is another's vulgarity. Cf. Cohen v. California, 403 U. S. 15, 403 U. S. 25. [Footnote 25] In this case, it is undisputed that the content of Pacifica's broadcast was "vulgar," "offensive," and "shocking." Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its Page 438 U. S. 748 context in order to determine whether the Commission's action was constitutionally permissible.
C We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502-503. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessit y." [Footnote 26] Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to th e victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept.,397 U. S. 72. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from
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unexpected program content. To say that one may avoid further offense by turning off the radio when he Page 438 U. S. 749 hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place. [Footnote 27] Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's voc abulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to child ren. We held in Ginsberg v. New York, 390 U. S. 629, that the government's interest in the "wellbeing of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression.
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, [Footnote 29] and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a "nuisance may be merely a right thing in the wrong place, -- like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272 U. S. 365, 272 U. S. 383. We simply hold that, when the Commission finds that a pig has entered the parlor, the exercise Page 438 U. S. 751 of its regulatory power does not depend on proof that the pig is obscene.
Page 438 U. S. 750 The judgment of the Court of Appeals is reversed. Id. at 390 U. S. 640 and 390 U. S. 639. [Footnote 28] The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.
It is so ordered. |438 U.S. 726app|
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APPENDIX TO OPINION OF THE COURT The following is a verbatim t ranscript of "Filthy Words" prepared by the Federal Communications Commission. Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, [']cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, [']cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right. (murmur) Right. And, uh, bastard you can say, and hell and damn, so I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter) And now the first thing that we no ticed was that word fuck was really repeated in there because the word motherfucker is a
compound word and it's another form of the word fuck. (laughter) You want to be a purist it Page 438 U. S. 752 doesn't really, it can't be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word -- the half sucker that's merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty -- dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock -- three times. It's in the Bible, cock in the Bible. (laughter) And the first time you heard about a cock-fight, remember -- What? Huh? naw. It ain't that, are you stupid? man. (laughter, clapping) It's chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it's not really okay. It's still a rude, dirty, old kind of gushy word. (laughter) They don't like that, but they say it, like, they say it like, a lady now in a middle-class home, you'll hear most of the time she says it as an expletive, you know, it's out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling) Read it! (from audience)
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Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't that groovy? (clapping, whistling) (murmur) That's true. Thank you. Thank you man. Yeah. (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [']cause (laughter) that's based on people liking it man, yeh, that's ah, that's okay man. (laughter) Let's let that go, man. I got my Grammy. I can let my hair hang down now, shit. (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, Page 438 U. S. 753 will ya? I don't want to see that shit anymore. I can't colt that shit, buddy. I've had that shit up to here. I think you're full of shit myself (laughter) He don't know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that (laughter) Hi, I'm the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don't know whether to shit or wind my watch. (laughter) Guess, I'll shit on my watch. (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house. (laughter) Up, he's up shit's creek. (laughter) He's had it. (laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I always like that. He ain't worth shit in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You know what I mean? (laughter) I got the money
back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn't there. (murmur, laughter) All the animals -- Bull shit, horse shit, cow shit, rat shit, bat shit. (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit. (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit. (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-1oad full of them. (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know. (laughter) Hey, I'm shit-face. (laughter) Shitface, today. (laughter) Anyway, enough of that shit. (laughter) The big one, the word fuck that's the one that hangs them up the most. [']Cause in a lot of cases that's the very act that Page 438 U. S. 754 hangs them up the most. So, it's natural that the word would, uh, have the same effect. It's a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound -- fuh -- ends with a kh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a double kind of a life -- personality -- dual, you know, whatever the right phrase 189
is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the beginning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet, on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you, (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine again. (laughter) The other shit one was, I don't give a shit. Like it's worth something, you know? (laughter) I don't give a shit. Hey, well, I don't take no shit, (laughter) you know what I mean? You know why I don't take no shit? (laughter)
out the bird's ass. You wouldn't shit me, would you? (laughter) It's an eight-year-old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three. (laughter) Fart, we talked about, it's harmless. It's like tits, it's a cutie word, no problem. Turd, you can't say, but who wants to, you know? (laughter) The subject never comes up on the panel, so I'm not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it's the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn't have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We're going to snatch that pussy and put him in a box and bring him on the airplane. (murmur, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you're riding into town on a religious feast day. (laughter) You can't say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say -- its weird, but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also. (clapping whistling)
Page 438 U. S. 755
[Footnote 1]
[']Cause I don't give a shit. (laughter) If I give a shit, I would have to pack shit. (laughter) But I don't pack no shit cause I don't give a shit. (laughter) You wouldn't shit me, would you? (laughter) That's a joke when you're a kid with a worm looking
56 F.C.C.2d at 99. The Commission noted: "Congress has specifically empowered the FCC to (1) revoke a station's license (2) issue a cease and desist order, or (3) 190
impose a monetary forfeiture for a violation of Section 1464, 47 U.S.C. [§§] 312(a), 312(b), 503(b)(1) (E). The FCC can also (4) deny license renewal or (5) grant a short term renewal, 47 U.S.C. [§§] 307, 308."
[Footnote 4] Section 303(g) of the Communications Act of 1934, 48 Stat. 1082, as amended, as set forth in 47 U.S.C. § 303(g), in relevant part, provides:
Id. at 96 n. 3. [Footnote 2] "Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference, see Rowan v. Post Office Dept., 397 U. S. 728 (1970); (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission, as well as parents, is the first point regarding the use of radio by children."
"Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall -- " "* * * *" "(g) . . . generally encourage the larger and more effective use of radio in the public interest." [Footnote 5] Thus, the Commission suggested, if an offensive broadcast had literary, artistic, political, or scientific value, and were preceded by warnings, it might not be indecent in the la te evening, but would be so during the day, when children are in the audience. 56 F.C.C.2d at 98.
Id. at 97. [Footnote 6] [Footnote 3] Title 18 U.S.C. § 1464 (1976 ed.) provides: "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both."
Chairman Wiley concurred in the result without joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropriate for broadcast at any time. Id. at 102-103. Commissioner Robinson, joined by Commissioner Hooks, filed a concurring statement expressing the opinion:
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"[W]e can regulate offensive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency' is not an inherent attribute of words themselves; it is, rather, a matter of context and conduct. . . . If I were called on to do so, I would find that Carlin's monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distinguished by sufficient literary value to avoid being 'indecent' within the meaning of the statute." Id. at 107-108, and n. 9. [Footnote 7] The Commission did, however, comment: "'[I]n some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.' Under these circumstances, we believe that it would be inequitable for us to hold a licensee responsible for indecent language. . . . We trust that, under such circumstances, a licensee will exercise judgment, responsibility, and sensitivity to the community's needs, interests and tastes." 59 F.C.C.2d at 893 n. 1. [Footnote 8] "Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by
the Commission which shall interfere with the right of free speech by means of radio communication." 48 Stat. 1091, 47 U.S.C. § 326. [Footnote 9] Zechariah Chafee, defending the Commission's authority to take into account program service in granting licenses, interpreted the restriction on "censorship" narrowly: "This means, I feel sure, the sort of censorship which went on in the seventeenth century in England -- the deletion of specific items and dictation as to what should go into particular programs." 2 Z. Chafee, Government and Mass Communications 641 (1947). [Footnote 10] In KFKB Broadcasting Assn. v. Federal Radio Comm'n, 60 App.D.C. 79, 47 F.2d 670 (1931), a doctor who controlled a radio station as well as a pharmaceutical association made frequent broadcasts in which he answered the medical questions of listeners. He often prescribed mixtures prepared by his pharmaceutical association. The Commission determined that renewal of the station's license would not be in the public interest, convenience, or necessity because many of the broadcasts served the doctor's private interests. In response
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to the claim that this was censorship in violation of § 29 of the 1927 Act, the Court held: "This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant's broadcasting matter to scrutiny prior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant's license, the commission has merely exercised its undoubted right to take note of appellant's past conduct, which is not censorship." 60 App.D.C. at 81, 47 F.2d at 672. In Trinity Methodist Church, South v. Federal Radio Comm'n, 61 App.D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, the station was controlled by a minister whose broadcasts contained frequent references to "pimps" and "prostitutes" as well as bitter attacks on the Roman Catholic Church. The Commission refused to renew the license, citing the nature of the broadcasts. The Court of Appeals affirmed, concluding that First Amendment concerns did not prevent the Commission from regulating broadcasts that "offend the religious susceptibilities of thousands . . . or offend youth and innocence by the free use of words suggestive of sexual immorality."
"this does not mean that the government, through agencies established by Congress, may not refuse a renewal of license to one who has abused it." Id. at 312, 62 F.2d at 851. [Footnote 11] See, e.g., Bay State Beacon, Inc. v. FCC, 84 U.S.App.D.C. 216, 171 F.2d 826 (1948); Idaho Microwave, Inc. v. FCC, 122 U.S.App.D.C. 253, 352 F.2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136 U.S.App.D.C. 352, 420 F.2d 194 (1969), cert. denied, 397 U.S. 922. [Footnote 12] See, e.g., 67 Cong.Rec. 12615 (1926) (remarks of Sen. Dill); id. at 5480 (remarks of Rep. White); 68 Cong.Rec. 2567 (1927) (remarks of Rep. Scott); Hearings on S. 1 and S. 1754 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121 (1926); Hearings on H.R. 5589 before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess., 26 and 40 (1926). See also Hearings on H.R. 8825 before the House Committee on the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim (1928). [Footnote 13]
61 App.D.C. at 314, 62 F.2d at 853. The court recognized that the licensee had a right to broadcast this material free of prior restraint, but
In addition to § 1464, the Commission also relied on its power to regulate in the public interest under 47 U.S.C. § 303(g). We do not need to consider whether § 303 may have independent
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significance in a case such as this. The statutes authorizing civil penalties incorporate § 1464, a criminal statute. See 47 U.S.C. §§ 312(a)(6), 312(b)(2), and 503(b)(1)(E) (1970 ed. and Supp. V). But the validity of the civil sanctions is not linked to the validity of the criminal penalty. The legislative history of the provisions establishes their independence. As enacted in 1927 and 1934, the prohibition on indecent speech was separate from the provisions imposing civil and criminal penalties for violating the prohibition. Radio Act of 1927, §§ 14, 29, and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, §§ 312, 326, and 501, 48 Stat. 1086, 1091, and 1100, 47 U.S.C. §§ 312, 326, and 501 (1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the strongest possible language that any invalid provision was separable from the rest of the Act. Radio Act of 1927, § 38, 44 Stat. 1174; Communications Act of 1934, § 608, 48 Stat. 1105, 47 U.S.C. § 608. Although the 1948 codification of the criminal laws and the addition of new civil penalties changes the statutory structure, no substantive change was apparently intended. Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 409 U. S. 162. Accordingly, we need not consider any question relating to the possible application of § 1464 as a criminal statute. [Footnote 14] Webster defines the term as "a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . ."
Webster's Third New International Dictionary (1966). [Footnote 15] Indeed, at one point, he used "indecency" as a shorthand term for "patent offensiveness," 370 U.S. at 370 U. S. 482, a usage strikingly similar to the Commission's definition in this case. 56 F.C.C.2d at 98. [Footnote 16] "'[W]hile a nudist magazine may be within the protection of the First Amendment . . . , the televising of nudes might well raise a serious question of programming contrary to 18 U.S.C. § 1464. . . . Similarly, regardless of whether the '4-letter words' and sexual description, set forth in 'Lady Chatterly's Lover,' (when considered in the context of the whole book) make the book obscene for mailability purposes, the utterance of such words or the depiction of such sexual activity on radio or TV would raise similar public interest and section 1464 questions.'" Enbanc Programming Inquiry, 44 F.C.C. 2303, 2307 (1960). See also In re WUHY-FM, 24 F.C.C.2d 408, 412 (1970); In re Sonderlin Broadcasting Corp., 27 R.R.2d 285, on reconsideration, 41 F.C.C.2d 777 (1973), aff'd on other grounds sub nom. Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515 F.2d 397 (1974); In re Mile High Stations, Inc., 28 F.C.C. 795 (1960); In re Palmetto Broadcasting Co., 33 F.C.C. 250 (1962), reconsideration denied, 34 F.C.C. 101 (1963), aff'd on other grounds sub nom. 194
Robinson v. FCC, 118 U.S.App.D.C. 144, 334 F.2d 534 (1964), cert. denied,379 U.S. 843. [Footnote 17] This conclusion is reinforced by noting the different constitutional limits on Congress' power to regulate the two different subjects. Use of the postal power to regulate material that is not fraudulent or obscene raises "grave constitutional questions." Hannegan v. Esquire, Inc., 327 U. S. 146, 327 U. S. 156. But it is well settled that the First Amendment has a special meaning in the broadcasting context. See, e.g., FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94. For this reason, the presumption that Congress never intends to exceed constitutional limits, which supported Hamling's narrow reading of § 1461, does not support a comparable reading of § 1464.
Pacifica's position would, of course, deprive the Commission of any power to regulate erotic telecasts unless they were obscene under Miller v. California, 413 U. S. 15. Anything that could be sold at a newsstand for private examination could be publicly displayed on television. We are assured by Pacifica that the free play of market forces will discourage indecent programming. "Smut may," as Judge Leventhal put it, "drive itself from the market and confound Gresham," 181 U.S.App.D.C. at 158, 556 F.2d at 35; the prosperity of those who traffic in pornographic literature and films would appear to justify skepticism. [Footnote 20] Although neither MR. JUSTICE POWELL nor MR. JUSTICE BRENNAN directly confronts this question, both have answered it affirmatively, the latter explicitly, post at 438 U. S. 768 n. 3, and the former implicitly by concurring in a judgment that could not otherwise stand.
[Footnote 18]
[Footnote 21]
A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.
See, e.g., Madison School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167, 429 U. S. 175-176; First National Bank of Boston v. Bellotti, 435 U. S. 765. [Footnote 22]
[Footnote 19] The monologue does present a point of view; it attempts to show that the words it uses are "harmless," and that our
195
attitudes toward them are "essentially silly." See supra at 438 U. S. 730. The Commission objects not to this point of view, but to the way in which it is expressed. The belief that these words are harmless does not necessarily confer a First Amendment privilege to use them while proselytizing, just as the conviction that obscenity is harmless does not license one to communicate that conviction by the indiscriminate distribution of an obscene leaflet. [Footnote 23] The Commission stated: "Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions. . . ." 56 F.C.C.2d at 98. Our society has a tradition of performing certain bodily functions in private, and of severely limiting the public exposure or discussion of such matters. Verbal or physical acts exposing those intimacies are offensive irrespective of any message that may accompany the exposure. [Footnote 24] With respect to other types of speech, the Court has tailored its protection to both the abuses and the uses to which it might be put. See, e.g., New York Times Co. v. Sullivan, 376 U. S. 254(special scienter rules in libel suits brought by public officials); Bates v. State Bar of Arizona, 433 U. S. 350 (government may strictly regulate truthfulness in
commercial speech). See also Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 82 n. 6 (POWELL, J., concurring). [Footnote 25] The importance of context is illustrated by the Cohen case. That case arose when Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words "Fuck the Draft." After entering the courtroom, he took the jacket off and folded it. 403 U.S. at 403 U. S. 19 n. 3. So far as the evidence showed, no one in the courthouse was offended by his jacket. Nonetheless, when he left the courtroom, Cohen was arrested, convicted of disturbing the peace, and sentenced to 30 days in prison. In holding that criminal sanctions could not be imposed on Cohen for his political statement in a public place, the Court rejected the argument that his speech would offend unwilling viewers; it noted that "there was no evidence that persons powerless to avoid [his] conduct did in fact object to it." Id. at 403 U. S. 22. In contrast, in this case, the Commission was responding to a listener's strenuous complaint, and Pacifica does not question its determination that this afternoon broadcast was likely to offend listeners. It should be noted that the Commission imposed a far more moderate penalty on Pacifica than the state court imposed on Cohen. Even the strongest civil penalty at the Commission's command does not include criminal prosecution. See n 1, supra. [Footnote 26] 196
47 U.S.C. §§ 309(a), 312(a)(2); FCC v . WOKO, Inc., 329 U. S. 223, 329 U. S. 229. Cf. Shuttlesworth v. Birmingham, 394 U. S. 147; Staub v. Baxley, 355 U. S. 313. [Footnote 27] Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away. See Erznoznik v. Jacksonville, 422 U. S. 205. As we noted in Cohen v. California: "While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue . . . , we have at the same time consistently stressed that "we are often captives' outside the sanctuary of the home, and subject to objectionable speech."" 403 U.S. at 403 U. S. 21. The problem of harassing phone calls is hardly hypothetical. Congress has recently found it necessary to prohibit debt collectors from "plac[ing] telephone calls without meaningful disclosure of the caller's identity"; from "engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number"; and from "us[ing] obscene or profane language or language the natural consequence of which is to abuse the hearer or reader." Consumer Credit Protection Act Amendments, 91 Stat. 877, 15 U.S.C. § 1692d (1976 ed., Supp. II).
[Footnote 28] The Commission's action does not by any means reduce adults to hearing only what is fit for children. Cf. Butler v. Michigan, 352 U. S. 380, 352 U. S. 383. Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words. In fact, the Commission has not unequivocally closed even broadcasting to speech of this sort; whether broadcast audiences in the late evening contain so few children that playing this monologue would be permissible is an issue neither the Commission nor this Court has decided. [Footnote 29] Even a prime time recitation of Geoffrey Chaucer's Miller's Tale would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected by passages such as: "And prively he caughte hire by the que ynte." The Canterbury Tales, Chaucer's Complete Works (Cambridge ed.1933), p. 58, l. 3276. MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins, concurring in part and concurring in the judgment. I join Parts I, II, III, and IV-C of MR. JUSTICE STEVENS' opinion. The Court today reviews only the Commission's holding that Carlin's monologue was indecent "as broadcast" Page 438 U. S. 756
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at two o'clock in the afternoon, and not the broad sweep of the Commission's opinion. Ante at 438 U. S. 734-735. In addition to being consistent with our settled practice of not deciding constitutional issues unnecessarily, see ante at 438 U. S. 734; Ashwander v. TVA, 297 U. S. 288, 297 U. S. 345-348 (1936) (Brandeis, J., concurring), this narrow focus also is conducive to the orderly development of this relatively new and difficult area of law, in the first instance by the Commission, and then by the reviewing courts. See 181 U.S.App.D.C. 132, 158-160, 556 F.2d 9, 35-37 (1977) (Leventhal, J., dissenting). I also agree with much that is said in 438 U. S. JUSTICE STEVENS' opinion, and with its conclusion that the Commission's holding in this case does not violate the First Amendment. Because I do not subscribe to all that is said in Part IV, however, I state my views separately.
I It is conceded that the monologue at issue here is not obscene in the constitutional sense. See56 F.C.C.2d 94, 98 (1975); Brief for Petitioner 18. Nor, in this context, does its language constitute "fighting words" within the meaning of Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). Some of the words used have been held protected by the First Amendment in other cases and contexts. E.g., Lewis v. New Orleans, 415 U. S. 130 (1974); Hess v. Indiana, 414 U. S. 105 (1973); Papish v. University of Missouri Curators, 410 U. S. 667 (1973); Cohen v. California, 403 U. S. 15(1971); see also Eaton v. Tulsa, 415 U. S. 697 (1974). I do not think Carlin, consistently with the
First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance. See Brown v. Oklahoma, 408 U. S. 914 (1972) (POWELL, J., concurring in result). And I would assume that an adult could not constitutionally be prohibited from purchasing a recording or transcript of the monologue Page 438 U. S. 757 and playing or reading it in the privacy of his own home. Cf. Stanley v. Georgia, 394 U. S. 557(1969). But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characterizing the narrow category of language used here as "patently offensive" to most people regardless of age. The issue, however, is whether the Commission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon. The Commission's primary concern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to "channel" the monologue to hours when the fewest unsupervised children would be exposed to it. See 56 F.C.C.2d at 98. In my view, this consideration provides strong support for the Commission's holding. [Footnote 2/1]
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The Court has recognized society's right to "adopt more stringent controls on communicative materials available to youths than on those available to adults." Erznoznik v. Jacksonville, 422 U. S. 205, 422 U. S. 212 (1975); see also, e.g., Miller v. California, 413 U. S. 15, 413 U. S. 36 n. 17 (1973); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 636641 (1968); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 195 (1964) (opinion of BRENNAN, J.). This recognition stems in large part from the fact that "a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Ginsberg v. New York, supra at 390 U. S. 649-650 (STEWART, J., concurring in result). Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling Page 438 U. S. 758 through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat: "[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society."
"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." "Prince v. Massachusetts, [321 U.S. 158, 321 U. S. 166 (1944)]. The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's wellbeing are entitled to the support of laws designed to aid discharge of that responsibility." Id. at 390 U. S. 639. The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the youthful prurient interest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts. In most instances, the dissemination of this kind of speech to children may be limited without also limiting willing adults' access to it. Sellers of printed and recorded matter and exhibitors of motion pictures and live performances may be required to shut their doors to children, but such a requirement has no effect on adults' access. See id. at 390 U. S. 634-635. The difficulty is that such a physical separation of the audience cannot be accomplished in the broadcast media. During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching
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Page 438 U. S. 759 children. This, as the Court emphasizes, is one of the distinctions between the broadcast and other media to which we often have adverted as justifying a different treatment of the broadcast media for First Amendment purposes. See Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 384 (1977); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 101 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 386-387 (1969); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972); see generally Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502-503 (1952). In my view, the Commission was entitled to give substantial weight to this difference in reaching its decision in this case. A second difference, not without relevance, is that broadcasting -- unlike most other forms of communication -- comes directly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds. Erznoznik v. Jacksonville, supra at 422 U. S. 209; Cohen v. California, 403 U.S. at 403 U. S. 21; Rowan v. Post Office Dept., 397 U. S. 728 (1970). Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, see, e.g., Erznoznik, supra at 422 U. S. 210-211, but cf. Rosenfeld v. New Jersey, 408 U. S. 901, 903909 (1972) (POWELL, J., dissenting), a different order of values obtains in the home.
"That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere." Rowan v. Post Office Dept., supra at 397 U. S. 738. The Commission also was entitled to give this factor appropriate weight in the circumstances of the instant case. This is not to say, however, that the Commission has an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect Page 438 U. S. 760 unwilling adults from momentary exposure to it in their homes. [Footnote 2/2] Making the sensitive judgments required in these cases is not easy. But this responsibility has been reposed initially in the Commission, and its judgment is entitled to respect. It is argued that, despite society's right to protect its children from this kind of speech, and despite everyone's interest in not being assaulted by offensive speech in the home, the Commission's holding in this case is impermissible because it prevents willing adults from listening to Carlin's monologue over the radio in the early afternoon hours. It is said that this ruling will have the effect of "reduc[ing] the adult population . . . to [hearing] only what is fit for children." Butler v. Michigan, 352 U. S. 380, 352 U. S. 383 (1957). This argument is not without force. The Commission certainly should consider it as it develops standards in this area. But it is not sufficiently strong to leave 200
the Commission powerless to act in circumstances such as those in this case. The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours, when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day. The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated Page 438 U. S. 761 use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here. In short, I agree that, on the facts of this case, the Commission's order did not violate respondent's First Amendment rights.
II As the foregoing demonstrates, my views are generally in accord with what is said in Part IV-C of MR. JUSTICE STEVENS' opinion. See ante at 438 U. S. 748-750. I therefore join that portion of his opinion. I do not join Part IVB, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment
is most "valuable," and hence deserving of the most protection, and which is less "valuable" and hence deserving of less protection. Compare ante at 438 U. S. 744-748; Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 63-73 (1976) (opinion of STEVENS, J.), with id. at 427 U. S. 73 n. 1 (POWELL, J., concurring). [Footnote 2/3] In my view, the result in this case does not turn on whether Carlin's monologue, viewed as a whole, or the words that constitute it, have more or less "value" than a candidate's campaign speech. This is a judgment for each person to make, not one for the judges to impose upon him. [Footnote 2/4] Page 438 U. S. 762 The result turns instead on the unique characteristics of the broadcast media, combined with society's right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today's decision will prevent any adult who wishes to receive Carlin's message in Carlin's own words from doing so, and from making for himself a value judgment as to the merit of the message and words. Cf. id. at 427 U. S. 77-79 (POWELL, J., concurring). These are the grounds upon which I join the judgment of the Court as to Part IV. [Footnote 2/1]
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See generally Judge Leventhal's thoughtful opinion in the Court of Appeals. 181 U.S.App.D.C. 132, 155-158, 556 F.2d 9, 32-35 (1977) (dissenting opinion). [Footnote 2/2] It is true that the radio listener quickly may tune out speech that is offensive to him. In addition, broadcasters may preface potentially offensive programs with warnings. But such warnings do not help the unsuspecting listener who tunes in at the middle of a program. In this respect, too, broadcasting appears to differ from books and records, which may carry warnings on their face, and from motion pictures and live performances, which may carry warnings on their marquees.
it has not in the past. See, e.g., Lewis v. New Orleans, 415 U. S. 130 (1974); Gooding v. Wilson, 405 U. S. 518 (1972). As MR. JUSTICE STEVENS points out, however, ante at 438 U. S. 734, the Commission's order was limited to the facts of this case; "it did not purport to engage in formal rulemaking or in the promulgation of any regulations." In addition, since the Commission may be expected to proceed cautiously, as it has in the past, cf. Brief for Petitioner 42-43, and n. 31, I do not foresee an undue "chilling" effect on broadcasters' exercise of their rights. I agree, therefore, that respondent's overbreadth challenge is meritless. ME. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.
[Footnote 2/3] The Court has, however, created a limited exception to this rule in order to bring commercial speech within the protection of the First Amendment. See Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 436 U. S. 455-456 (1978). [Footnote 2/4] For much the same reason, I also do not join Part IV-A. I had not thought that the application vel non of overbreadth analysis should depend on the Court's judgment as to the value of the protected speech that might be deterred. Cf. ante at 438 U. S. 743. Except in the context of commercial speech, see Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 380-381 (1977),
I agree with MR. JUSTICE STEWART that, under Hamling v. United States, 418 U. S. 87 (1974), and United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973), the word "indecent" in 18 U.S.C. § 1464 (1976 ed.) must be construed to prohibit only obscene speech. I would, therefore, normally refrain from expressing my views on any constitutional issues implicated in this case. However, I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.
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I For the second time in two years, see Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), the Court refuses to embrace the notion, completely antithetical to basic First Amendment values, that the degree of protection the First Page 438 U. S. 763 Amendment affords protected speech varies with the social value ascribed to that speech by five Members of this Court. See opinion of MR. JUSTICE POWELL, ante at 438 U. S. 761-762. Moreover as do all parties, all Members of the Court agree that the Carlin monologue aired by Station WBAI does not fall within one of the categories of speech, such as "fighting words," Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), or obscenity, Roth v. United States, 354 U. S. 476 (1957), that is totally without First Amendment protection. This conclusion, of course, is compelled by our cases expressly holding that communications containing some of the words found condemnable here are fully protected by the First Amendment in other contexts. See Eaton v. Tulsa, 415 U. S. 697 (1974); Papish v. University of Missouri Curators, 410 U. S. 667 (1973); Brown v. Oklahoma, 408 U. S. 914 (1972); Lewis v. New Orleans, 408 U. S. 913 (1972); Rosenfeld v. New Jersey, 408 U. S. 901 (1972); Cohen v. California, 403 U. S. 15 (1971). Yet despite t.he Court's refusal to create a sliding scale of First Amendment protection calibrated to this Court's perception of the worth of a communication's content, and despite our unanimous agreement that the Carlin monologue is protected
speech, a majority of the Court [Footnote 3/1] nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanctions on Pacifica for its airing of the Carlin monologue. This majority apparently believes that the FCC's disapproval of Pacifica's afternoon broadcast of Carlin's "Dirty Words" recording is a permissible time, place, and manner regulation. Kovacs v. Cooper, 336 U. S. 77(1949). Both the opinion of my Brother STEVENS and the opinion of my Brother POWELL rely principally on two factors in reaching this conclusion: (1) the capacity of a radio broadcast to intrude into the unwilling listener's home, Page 438 U. S. 764 and (2) the presence of children in the listening audience. Dispassionate analysis, removed from individual notions as to what is proper and what is not, starkly reveals that these justifications, whether individually or together, simply do not support even the professedly moderate degree of governmental homogenization of radio communications -- if, indeed, such homogenization can ever be moderate given the preeminent status of the right of free speech in our constitutional scheme that the Court today permits. A Without question, the privacy interests of an individual in his home are substantial, and deserving of significant protection. In finding these interests sufficient to justify the content regulation of protected speech, however, the Court commits two errors. First, it misconceives the nature of the privacy 203
interests involved where an individual voluntarily chooses to admit radio communications into his home. Second, it ignores the constitutionally protected interests of both those who wish to transmit and those who desire to receive broadcasts that many -- including the FCC and this Court -- might find offensive. "The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manne r. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections."
to take part, if only as a listener, in an ongoing public discourse. See Note, Filthy Words, the FCC, and the First Amendment: Regulating Broadcast Obscenity, 61 Va.L.Rev. 579, 618 (1975). Although an individual's decision to allow public radio communications into his home und oubtedly does not abrogate all of his privacy interests, the residual privacy interests he retains vis-a-vis the communication he voluntarily admits into his home are surely no greater than those of the people present in the corridor of the Los Angeles courthouse in Cohen who bore witness to the words "Fuck the Draft" emblazoned across Cohen's jacket. Their privacy interests were held insufficient to justify punishing Cohen for his offensive communication.
Page 438 U. S. 765
Even if an individual who voluntarily opens his home to radio communications retains privacy interests of sufficient moment to justify a ban on protected speech if those interests are "invaded in an essentially intolerable manner," Cohen v. California, supra at 403 U. S. 21, the very fact that those interests are threatened only by a radio broadcast precludes any intolerable invasion of privacy; for unlike other intrusive modes of communication, such as sound trucks, "[t]he radio can be turned off," Lehman v. Shaker Heights, 418 U. S. 298, 418 U. S. 302 (1974) -- and with a min imum of effort. As Chief Judge Bazelon aptly observed below,
and listening to communications transmitted over the public airways and directed to the public at large do not implicate fundamental privacy interests, even when engaged in within the home. Instead, because the radio is undeniably a public medium, these actions are more properly viewed as a decision
"having elected to receive public air waves, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik [v. Jacksonville, 422 U. S. 205 (1975)]; he can avert his attention by changing channels or turning off the set."
Cohen v. California, supra, at 403 U. S. 21. I am in wholehearted agreement with my Brethren that an individual's right "to be let alone" when engaged in private activity within the confines of his own home is encompassed within the "substantial privacy interests" to which Mr. J ustice Harlan referred in Cohen, and is entitled to the greatest solicitude. Stanley v. Georgia, 394 U. S. 557(1969). However, I believe that an individual's actions in switching on
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181 U.S.App.D.C. 132, 149, 556 F.2d 9, 26 (1977). Whatever the minimal discomfort suffered by a Page 438 U. S. 766 listener who inadvertently tunes into a program he finds offensive during the brief interval before he can simply extend his arm and switch stations or flick the "off" button, it is surely worth the candle to preserve the broadcaster's right to send, and the right of those interested to receive, a message entitled to full First Amendment protection. To reach a contrary balance, as does the Court, is clea rly to follow MR. JUSTICE STEVENS' reliance on animal metaphors, anteat 438 U. S. 750-751, "to burn the house to roast the pig." Butler v. Michigan, 352 U. S. 380, 352 U. S. 383 (1957). The Court's balance, of necessity, fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a receptive, unoffended minority. No decision of this Court supports such a result. Where the individuals constituting the offended majority may freely choose to reject the material being offered, we have never found their privacy interests of such moment to warrant the suppression of speech on privacy grounds. Cf. Lehman v. Shaker Heights, supra. Rowan v. Post Office Dept., 397 U. S. 728 (1970), relied on by the FCC and by the opinions of my Brothers POWELL and STEVENS, confirms, rather than belies, this conclusion. In Rowan, the Court upheld a statute, 39 U.S.C. § 4009 (1964 ed., Supp. IV), permitting householders to require that mail advertisers stop
sending them lewd or offensive materials and remove their names from mailing lists. Unlike the situation here, householders who wished to receive the sender's communications were not prevented from doing so. Equally important, the determination of offensiveness vel non under the statute involved in Rowan was completely within the hands of the individual householder; no governmental evaluation of the worth of the mail's content stood between the mailer and the householder. In contrast, the visage of the censor is all too discernible here. Page 438 U. S. 767 B Most parents will undoubtedly find understandable, as well as commendable, the Court's sympathy with the FCC's desire to prevent offensive broadcasts from reaching the ears of unsupervised children. Unfortunately, the facial appeal of this justification for radio censorship masks its constitutional insufficiency. Although the government unquestionably has a special interest in the wellbeing of children, and consequently "can adopt more stringent controls on communicative materials available to youths than on those available to adults," Erznoznik v. Jacksonville, 422 U. S. 205, 422 U. S. 212 (1975); see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 413 U. S. 106-107 (1973) (BRENNAN, J., dissenting), the Court has accounted for this societal interest by adopting a "variable obscenity" standard that permits the prurient appeal of material available to children to be assessed in terms of the sexual interests of minors. Ginsberg v. New York, 390 U. S. 205
629 (1968). It is true that the obscenity standard the Ginsberg Court adopted for such materials was based on the then-applicable obscenity standard of Roth v. United States, 354 U. S. 476 (1957), and Memoirs v. Massachusetts, 383 U. S. 413 (1966), and that "[w]e have not had occasion to decide what effect Miller [v. California, 413 U. S. 15 (1973)] will have on the Ginsbergformulation." Erznoznik v. Jacksonville, supra at 422 U. S. 213 n. 10. Nevertheless, we have made it abundantly clear that, "under any test of obscenity as to minors . . . , to be obscene, such expression must be, in some significant way, erotic.'" 422 U.S. at 422 U. S. 213 n. 10, quoting Cohen v. California, 403 U.S. at 403 U. S. 20. Because the Carlin monologue is obviously not an erotic appeal to the prurient interests of children, the Court, for the first time, allows the government to prevent minors from gaining access to materials that are not obscene, and are therefore protected, as to them. [Footnote 3/2] It thus ignores our recent admonition Page 438 U. S. 768 that "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."
422 U.S. at 422 U. S. 213-214. [Footnote 3/3] The Court's refusal to follow its own pronouncements is especially lamentable, since it has the anomalous subsidiary effect, at least in the radio context at issue here, of making completely unavailable to adults material which may not constitutionally be kept even from children. This result violates in spades the principle of Butler v. Michigan, supra. Butler involved a challenge to a Michigan statute that forbade the publication, sale, or distribution of printed material "tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth." 352 U.S. at 352 U. S. 381. Although Roth v. United States, supra, had not yet been decided, it is at least arguable that the material the statute in Butler was designed to suppress could have been constitutionally denied to children. Nevertheless, this Court Page 438 U. S. 769 found the statute unconstitutional. Speaking for the Court, Mr. Justice Frankfurter reasoned: "The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society." 352 U.S. at 352 U. S. 383-384. Where, as here, the government may not prevent the exposure of minors to the 206
suppressed material, the principle of Butler applies a fortiori. The opinion of my Brother POWELL acknowledges that there lurks in today's decision a potential for "reduc[ing] the adult population . . . to [hearing] only what is fit for children,'" ante at 438 U. S. 760, but expresses faith that the FCC will vigilantly prevent this potential from ever becoming a reality. I am far less certain than my Brother POWELL that such faith in the Commission is warranted, see Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 187-190, 515 F.2d 397, 418-421 (1975) (statement of Bazelon, C.J., as to why he voted to grant rehearing en banc); and even if I shared it, I could not so easily shirk the responsibility assumed by each Member of this Court jealously to guard against encroachments on First Amendment freedoms. In concluding that the presence of children in the listening audience provides an adequate basis for the FCC to impose sanctions for Pacifica's broadcast of the Carlin monologue, the opinions of my Brother POWELL, ante at 438 U. S. 757-758, and my Brother STEVENS, ante at 438 U. S. 749-750, both stress the time-honored right of a parent to raise his child as he sees fit -- a right this Court has consistently been vigilant to protect. See Wisconsin v. Yoder, 406 U. S. 205 (1972); Pierce v. Society of Sisters, 268 U. S. 510 (1925). Yet this principle supports a Page 438 U. S. 770 result directly contrary to that reached by the Court. Yoder and Pierce hold that parents, not the government, have the right to make certain decisions regarding the
upbringing of their children. As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin's unabashed attitude towards the seven "dirty words" healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter the right's nature or its existence. Only the Court's regrettable decision does that. [Footnote 3/4] C As demonstrated above, neither of the factors relied on by both the opinion of my Brother POWELL and the opinion of my Brother STEVENS -- the intrusive nature of radio and the presence of children in the listening audience -- ca n, when taken on its own terms, support the FCC's disapproval of the Carlin monologue. These two asserted justifications are further plagued by a common failing: the lack of principle d limits on their use as a basis for FCC censorship. No such limits come readily to mind, and neither of the opinions constituting the Court serves to clarify the extent to which the FCC may assert the privacy and "children in the audience" rationales as justification for expunging from the airways protected communications the Commission finds offensive. Taken to their logical extreme, these rationales would support the cleansing of public Page 438 U. S. 771
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radio of any "four-letter words" whatsoever, regardless of their context. The rationales could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible. [Footnote 3/5] In order to dispel the specter of the possibility of so unpalatable a degree of censorship, and to defuse Pacifica's overbreadth challenge, the FCC insists that it desires only the authority to reprimand a broadcaster on facts analogous to those present in this case, which it describes as involving "broadcasting for nearly twelve minutes a record which repeated over and over words which depict sexual or excretory activities and organs in a manner patently offensive by its community's contemporary standards in the early afternoon when children were in the audience." Brief for Petitioner 45. The opinions of both my Brother POWELL and my Brother STEVENS take the FCC at its word, and consequently do no more than permit the Commission to censor the afternoon broadcast of the "sort of verbal shock treatment," opinion of MR. JUSTICE POWELL, ante at 438 U. S. 757, involved here. To insure that the FCC's regulation of protected speech does not exceed these bounds, my Brother POWELL is content to rely upon the judgment of the
Page 438 U. S. 772 Commission while my Brother STEVENS deems it pruden t to rely on this Court's ability accurately to assess the worth of various kinds of speech. [Footnote 3/6] For my own part, even accepting that this case is limited to its facts, [Footnote 3/7] I would place the responsibility and the right to weed worthless and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications worthy of its attention from a marketplace unsullied by the censor's hand.
II The absence of any hesitancy in the opinions of my Brothers POWELL and STEVENS to approve the FCC's censorship of the Carlin monologue on the basis of two demonstrably inadequate grounds is a function of their perception that the decision will result in little, if any, curtailment of communicative exchanges protected by the First Amendment. Although the extent to Page 438 U. S. 773 which the Court stands ready to countenance FCC censorship of protected speech is unclear from today's decision, I find the reasoning by which my Brethren conclude that the FCC censorship they approve will not significantly infringe on First Amendment values both disingenuous as to reality and wrong as a matter of law.
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My Brother STEVENS, in reaching a result apologetically described as narrow, ante at 438 U. S. 750, takes comfort in his observation that "[a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication," ante at 438 U. S. 743 n. 18, and finds solace in his conviction that "[t]here are few, if any, thoughts that cannot be expressed by the use of less offensive language." Ibid. The idea that the content of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image. Indeed, for those of us who place an appropriately high value on our cherished First Amendment rights, the word "censor" is such a word. Mr. Justice Harlan, speaking for the Court, recognized the truism that a speaker's choice of words cannot surgically be separated from the ideas he desires to express when he warned that "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." Cohen v. California, 403 U.S. at 403 U. S. 26. Moreover, even if an alternative phrasing may communicate a speaker's abstract ideas as effectively as those words he is forbidden to use, it is doubtful that the sterilized message will convey the emotion that is an essential part of so many communications. This, too, was apparent to Mr. Justice Harlan and the Court in Cohen.
"[W]e cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys Page 438 U. S. 774 not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." Id. at 403 U. S. 25-26. My Brother STEVENS also finds relevant to his First Amendment analysis the fact that "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear [the tabooed] words." Ante at 438 U. S. 750 n. 28. My Brother POWELL agrees: "The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion." Ante at 438 U. S. 760. The opinions of my Brethren display both a sad insensitivity to the fact that these alternatives
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involve the expenditure of money, time, and effort that many of those wishing to hear Mr. Carlin's message may not be able to afford, and a naive innocence of the reality that, in many cases, the medium may well be the message. The Court apparently believes that the FCC's actions here can be analogized to the zoning ordinances upheld in Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). For two reasons, it is wrong. First, the zoning ordinances found to pass constitutional muster in Young had valid goals other than the channeling of protected speech. Id. at 427 U. S. 71 n. 34 (opinion of STEVENS, J.); id. at 427 U. S. 80 (POWELL, J., concurring). No such goals are present here. Second, and crucial to the opinions of my Brothers POWELL and STEVENS in Young -- opinions, which, as they do in this case, supply the bare five-person majority of the Court -- the ordinances did not restrict the access of distributors or exhibitors to the market or impair Page 438 U. S. 775 the viewing public's access to the regulated material. Id. at 427 U. S. 62, 427 U. S. 71 n. 35 (opinion of STEVENS, J.); id. at 427 U. S. 77 (POWELL, J., concurring). Again, this is not the situation here. Both those desiring to receive Carlin's message over the radio and those wishing to send it to them are prevented from doing so by the Commission's actions. Although, as my Brethren point out, Carlin's message may be disseminated or received by other means, this is of little consolation to those broadcasters and listeners who, for a host of reasons, not least among them
financial, do not have access to, or cannot take advantage of, these other means. Moreover, it is doubtful that even those frustrated listeners in a position to follow my Brother POWELL's gratuitous advice and attend one of Carlin's performances or purchase one of his records would receive precisely the same message Pacifica's radio station sent its audience. The airways are capable not only of carrying a message, but also of transforming it. A satirist's monologue may be most potent when delivered to a live audience; yet the choice whether this will in fact be the manner in which the message is delivered and received is one the First Amendment prohibits the government from making.
III It is quite evident that I find the Court's attempt to unstitch the warp and woof of First Amendment law in an effort to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous, as well as lamentable. Yet there runs throughout the opinions of my Brothers POWELL and STEVENS another vein I find equally disturbing: a depressing inability to appreciate that, in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain. Page 438 U. S. 776
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"A word is not a crystal, transparent and unchanged, it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used."
variety of reasons, including a conscious desire to flout majoritarian conventions, express themselves using words that may be regarded as offensive by those from different socioeconomic backgrounds. [Footnote 3/8]
Towne v. Eisner, 245 U. S. 418, 245 U. S. 425 (1918) (Holmes, J.). The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not many, of the innumerable subcultures that compose this Nation. Academic research indicates that this is indeed the case. See B. Jackson, "Get Your Ass in the Water and Swim Like Me" (1974); J. Dillard, Black English (1972); W. Labov, Language in the Inner City: Studies in the Black English Vernacular (1972). As one researcher concluded,
Page 438 U. S. 777
"[w]ords generally considered obscene, like 'bullshit' and 'fuck' are considered neither obscene nor derogatory in the [black] vernacular except in particular contextual situations and when used with certain intonations." C. Bins, "Toward an Ethnography of Contemporary African American Oral Poetry," Language and Linguistics Working Papers No. 5, p. 82 (Georgetown Univ. Press 1972). Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (CA1 1969) (finding the use of the word "motherfucker" commonplace among young radicals and protesters).
In this context, the Court's decision may be seen for what, in the broader perspective, it really is: another of the dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking. See Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 506-511 (1977) (BRENNAN, J., concurring). Pacifica, in response to an FCC inquiry about its broadcast of Carlin's satire on "the words you couldn't say on the public . . . airways,'" explained that "Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." 56 F.C.C.2d at 95, 96. In confirming Carlin's prescience as a social commentator by the result it reaches today, the Court evinces an attitude toward the "seven dirty words" that many others besides Mr. Carlin and Pacifica might describe as "silly." Whether today's decision will similarly prove "harmless" remains to be seen. One can only hope that it will. [Footnote 3/1]
Today's decision will thus have its greatest impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court's view as to which words or expressions are acceptable and who, for a
Where I refer without differentiation to the actions of "the Court," my reference is to this majority, which consists of my
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Brothers POWELL and STEVENS and those Members of the Court joining their separate opinions.
[Footnote 3/4]
Even if the monologue appealed to the prurient interest of minors, it would not be obscene as to them unless, as to them, "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California, 413 U. S. 15, 413 U. S. 24 (1973).
The opinions of my Brothers POWELL and STEVENS rightly refrain from relying on the notion of "spectrum scarcity" to support their result. As Chief Judge Bazelon noted below, "although scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship." 181 U.S.App.D.C. at 152, 556 F.2d at 29 (emphasis in original). See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 396 (1969).
[Footnote 3/3]
[Footnote 3/5]
It may be that a narrowly drawn regulation prohibiting the use of offensive language on broadcasts directed specifically at younger children constitutes one of the "other legitimate proscription[s]" alluded to in Erznoznik. This is so both because of the difficulties inherent in adapting the Miller formulation to communications received by young children, and because such children are "not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees." Ginsberg v. New York, 390 U. S. 629, 390 U. S. 649-650 (1968) (STEWART, J., concurring). I doubt, as my Brother STEVENS suggests, ante at 438 U. S. 745 n. 20, that such a limited regulation amounts to a regulation of speech based on its content, since, by hypothesis, the only persons at whom the regulated communication is directed are incapable of evaluating its content. To the extent that such a regulation is viewed as a regulation based on content, it marks the outermost limits to which content regulation is permissible.
See, e.g., I Samuel 25:22: "So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall"; II Kings 18:27 and Isaiah 36:12: "[H]ath he not sent me to the men which sit on the wall, that they may eat their own dung, and drink their own piss with you?"; Ezekiel 23:3: "And they committed whoredoms in Egypt; they committed whoredoms in their youth; there were their breasts pressed, and there they bruised the teats of their virginity."; Ezekiel 23:21: "Thus thou calledst to remembrance the lewdness of thy youth, in bruising thy teats by the Egyptians for the paps of thy youth." The Holy Bible (King James Version) (Oxford 1897).
[Footnote 3/2]
[Footnote 3/6] Although ultimately dependent upon the outcome of review in this Court, the approach taken by my Brother STEVENS would not appear to tolerate the FCC's suppression of any speech, 212
such as political speech, falling within the core area of First Amendment concern. The same, however, cannot be said of the approach taken by my Brother POWELL, which, on its face, permits the Commission to censor even political speech if it is sufficiently offensive to community standards. A result more contrary to rudimentary First Amendment principles is difficult to imagine.
Under the approach taken by my Brother POWELL, the availability of broadcasts about groups whose members constitute such audiences might also be affected. Both news broadcasts about activities involving these groups and public affairs broadcasts about their concerns are apt to contain interviews, statements, or remarks by group leaders and members which may contain offensive language to an extent my Brother POWELL finds unacceptable.
[Footnote 3/7] Having insisted that it seeks to impose sanctions on radio communications only in the limited circumstances present here, I believe that the FCC is estopped from using either this decision or its own orders in this case, 56 F.C.C.2d 94 (1975) and 59 F.C.C.2d 892 (1976), as a basis for imposing sanctions on any public radio broadcast other than one aired during the daytime or early evening and containing the relentless repetition, for longer than a brief interval, of "language that describes, in term patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs." 56 F.C.C.2d at 98. For surely broadcasters are not now on notice that the Commission desires to regulate any offensive broadcast other than the type of "verbal shock treatment" condemned here, or even this "shock treatment" type of offensive broadcast during the late evening. [Footnote 3/8]
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL join, dissenting. The Court today recognizes the wise admonition that we should "avoid the unnecessary decision of [constitutional] issues." Ante at 438 U. S. 734. But it disregards one important application of this salutary principle -- the need to construe an Act of Congress so as to avoid, if possible, passing upon its constitutionality. [Footnote 4/1] It is apparent that the constitutional questions raised by the order of the Commission in this case are substantial. [Footnote 4/2] Before deciding them, we should be certain that it is necessary to do so. Page 438 U. S. 778 The statute pursuant to which the Commission acted, 18 U.S.C. § 1464 (1976 ed.), [Footnote 4/3] makes it a federal offense to utter "any obscene, indecent, or profane language by means of radio communication." The Commission held, and the Court today agrees, that "indecent" is a broader concept than "obscene" as the latter term was defined in Miller v. 213
California, 413 U. S. 15, because language can be "indecent" although it has social, political, or artistic value and lacks prurient appeal. 56 F.C.C.2d 94, 97-98. [Footnote 4/4] But this construction of § 1464, while perhaps plausible, is by no means compelled. To the contrary, I think that "indecent" should properly be read as meaning no more than "obscene." Since th e Carlin monologue concededly was not "obscene," I believe that the Commission lacked statutory authority to ban it. Under this construction of the statute, it is unnecessary to address the difficult and important issue of the Commission's constitutional power to prohibit speech that Page 438 U. S. 779 would be constitutionally protected outside the context of electronic broadcasting.
clear holding of Hamling is that "indecent," as used in § 1461, has the same meaning as "obscene" as that term was defined in the Miller case. See also Marks v. United States,430 U. S. 188, 430 U. S. 190 (18 U.S.C. § 1465). Nothing requires the conclusion that the word "indecent" has any meaning in § 1464 other than that ascribed to the same word in § 1461. [Footnote 4/5] Indeed, although the legislative history is largely silent, [Footnote 4/6] such indications as there are support the view that § 1461 and 1464 should be construed similarly. The view that "indecent" means no more than "obscene" in § 1461 and similar statutes long antedated Hamling. See United States v. Bennett, 24 F.Cas. 1093 (No. 14,571) (CC SDNY 1879); Dunlop v. United States, 165 U. S. 486, 165 U. S. 500-501; Page 438 U. S. 780
This Court has recently decided the meaning of the term "indecent" in a closely related statutory context. In Hamling v. United States, 418 U. S. 87, the petitioner was convicted of violating 18 U.S.C. § 1461, which prohibits the mailing of "[e]very obscene, lewd, lascivious, indecent, filthy or vile article." The Court "construe[d] the generic terms in [§ 1461] to be limited to the sort of "patently offensive representations or descriptions of that specific hard core' sexual conduct given as examples in Miller v. California."" 418 U.S. at 418 U. S. 114, quoting United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 413 U. S. 130 n. 7. Thus, the
Manual Enterprises v. Day, 370 U. S. 478, 370 U. S. 482484, 370 U. S. 487 (opinion of Harlan, J.). [Footnote 4/7] And although §§ 1461 and 1464 were originally enacted separately, they were codified together in the Criminal Code of 1848 as part of a chapter entitled "Obscenity." There is nothing in the legislative history to suggest that Congress intended that the same word in two closely related sections should have different meanings. See H.R.Rep. No. 304, 80th Cong., 1st Sess., A104A106 (1947). I would hold, therefore, that Congress intended, by using the word "indecent" in § 1464, to prohibit nothing more than obscene speech. [Footnote 4/8] Under that reading of the 214
statute, the Commission's order in this case was not authorized, and on that basis, I would affirm the judgment of the Court of Appeals. [Footnote 4/1] See, e.g., Johnson v. Robison, 415 U. S. 361, 415 U. S. 366367; United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 369; Rescue Army v. Municipal Court, 331 U. S. 549, 331 U. S. 569; Ashwander v. TVA, 297 U. S. 288, 297 U. S. 348 (Brandeis, J., concurring); Crowell v. Benson,285 U. S. 22, 285 U. S. 62. [Footnote 4/2] The practice of construing a statute to avoid a constitutional confrontation is followed whenever there is "a serious doubt'" as to the statute's constitutionality. E.g., United States v. Rumely, 345 U. S. 41, 345 U. S. 45; Blodgett v. Holden, 275 U. S. 142, 275 U. S. 148 (opinion of Holmes, J.). Thus, the Court has construed a statute to avoid raising a doubt as to its constitutionality even though the Court later in effect held that the statute, otherwise construed, would have been constitutionally valid. Compare General Motors Corp. v. District of Columbia, 380 U. S. 553, with Moorman Mfg. Co. v. Bair ,437 U. S. 267. [Footnote 4/3]
303(g). Ante at 438 U. S. 739 n. 13. For one thing, the order clearly rests only upon the Commission's interpretation of the term "indecent" in § 1464; the attempt by the Commission in this Court to assert that § 303(g) was an independent basis for its action must fail. Cf. SEC v. Chenery Corp., 318 U. S. 80, 318 U. S. 94-95; SEC v. Sloan, 436 U. S. 103, 436 U. S. 117-118. Moreover, the general language of § 303(g) cannot be used to circumvent the terms of a specific statutory mandate such as that of § 1464. "[T]he Commission's power in this respect is limited by the scope of the statute. Unless the [language] involved here [is] illegal under § [1464], the Commission cannot employ the statute to make [it] so by agency action." FCC v. American Broadcasting Co., 347 U. S. 284, 347 U. S. 290. [Footnote 4/4] The Commission did not rely on § 1464's prohibition of "profane" language, and it is thus unnecessary to consider the scope of that term. [Footnote 4/5] The only Federal Court of Appeals (apart from this case) to consider the question has held that
The Court properly gives no weight to the Commission's passing reference in its order to 47 U.S.C. §
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"'obscene' and 'indecent' in § 1464 are to be read as parts of a single proscription, applicable only if the challenged language appeals to the prurient interest." United States v. Simpson, 561 F.2d 53, 60 (CA7).
"It is true . . . that these are not criminal cases, but it is a criminal statute that we must interpret. There cannot be one construction for the Federal Communications Commission and another for the Department of Justice. If we should give § [1464] the broad construction urged by the Commission, the same construction would likewise apply in criminal cases."
[Footnote 4/6] FCC v. American Broadcasting Co., supra at 347 U. S. 296. Section 1464 originated as part of § 29 of the Radio Act of 1927, 44 Stat. 1172, which was reenacted as § 326 of the Communications Act of 1934, 48 Stat. 1091. Neither the committee reports nor the floor debates contain any discussion of the meaning of "obscene, indecent or profane language." [Footnote 4/7] When the Federal Communications Act was amended in 1968 to prohibit "obscene, lewd, lascivious, filthy, or indecent" telephone calls, 82 Stat. 112, 47 U.S.C. § 223, the FCC itself indicated that it thought this language covered only "obscene" telephone calls. See H.R.Rep. No. 1109, 90th Cong., 2d Sess., 7-8 (1968). [Footnote 4/8] This construction is further supported by the general rule of lenity in construing criminal statutes. See Adamo Wrecking Co. v. United States, 434 U. S. 275, 434 U. S. 285. The Court's statement that it need not consider the meaning § 1464 would have in a criminal prosecution, ante at 438 U. S. 739 n. 13, is contrary to settled precedent:
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