G.R. No.

80806 October 5, 1989 the Constitutional guarantees of

freedom of speech and of the press.
LEO PITA doing business under the name and style of
PINOY PLAYBOY, petitioner, By order dated December 8, 1983 the
vs. Court set the hearing on the petition for
THE COURT OF APPEALS, RAMON BAGATSING, and preliminary injunction on December
NARCISO CABRERA, respondents. 14,1983 and ordered the defendants to
show cause not later than December
SARMIENTO, J.: 13, 1983 why the writ prayed for should
not be granted.
The petitioner, publisher of Pinoy Playboy, a "men's
magazine", seeks the review of the decision of the Court On December 12, 1983, plaintiff filed an
of Appeals, 1 rejecting his appeal from the decision of Urgent Motion for issuance of a
the Regional Trial Court, dismissing his complaint for temporary restraining order against
injunctive relief. He invokes, in particular, the guaranty indiscriminate seizure, confiscation and
against unreasonable searches and seizures of the burning of plaintiff's "Pinoy Playboy"
Constitution, as well as its prohibition against Magazines, pending hearing on the
deprivation of property without due process of law. petition for preliminary injunction in
There is no controversy as to the facts. We quote: view of Mayor Bagatsing's
pronouncement to continue the Anti-
On December 1 and 3, 1983, pursuing Smut Campaign. The Court granted the
an Anti-Smut Campaign initiated by the temporary restraining order on
Mayor of the City of Manila, Ramon D. December 14, 1983.
Bagatsing, elements of the Special Anti-
Narcotics Group, Auxilliary Services In his Answer and Opposition filed on
Bureau, Western Police District, INP of December 27,1983 defendant Mayor
the Metropolitan Police Force of Bagatsing admitted the confiscation and
Manila, seized and confiscated from burning of obscence reading materials
dealers, distributors, newsstand owners on December 1 and 3, 1983, but
and peddlers along Manila sidewalks, claimed that the said materials were
magazines, publications and other voluntarily surrendered by the vendors
reading materials believed to be to the police authorities, and that the
obscene, pornographic and indecent said confiscation and seizure was (sic)
and later burned the seized materials in undertaken pursuant to P.D. No. 960, as
public at the University belt along C.M. amended by P.D. No. 969, which
Recto Avenue, Manila, in the presence amended Article 201 of the Revised
of Mayor Bagatsing and several officers Penal Code. In opposing the plaintiffs
and members of various student application for a writ of preliminary
organizations. injunction, defendant pointed out that
in that anti- smut campaign conducted
Among the publications seized, and on December 1 and 3, 1983, the
later burned, was "Pinoy Playboy" materials confiscated belonged to the
magazines published and co-edited by magazine stand owners and peddlers
plaintiff Leo Pita. who voluntarily surrendered their
reading materials, and that the plaintiffs
On December 7, 1983, plaintiff filed a establishment was not raided.
case for injunction with prayer for
issuance of the writ of preliminary The other defendant, WPD
injunction against Mayor Bagatsing and Superintendent, Narcisco Cabrera, filed
Narcisco Cabrera, as superintendent of no answer.
Western Police District of the City of
Manila, seeking to enjoin and/or On January 5,1984, plaintiff filed his
restrain said defendants and their Memorandum in support of the
agents from confiscating plaintiffs issuance of the writ of preliminary
magazines or from otherwise injunction, raising the issue as to
preventing the sale or circulation "whether or not the defendants and/or
thereof claiming that the magazine is a their agents can without a court order
decent, artistic and educational confiscate or seize plaintiffs magazine
magazine which is not per se obscene, before any judicial finding is made on
and that the publication is protected by whether said magazine is obscene or
not".

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 The restraining order issued on We cannot quarrel with the basic
December 14,1983 having lapsed on postulate suggested by appellant that
January 3,1984, the plaintiff filed an seizure of allegedly obscene
urgent motion for issuance of another publications or materials deserves close
restraining order, which was opposed scrutiny because of the constitutional
by defendant on the ground that guarantee protecting the right to
issuance of a second restraining order express oneself in print (Sec. 9, Art. IV),
would violate the Resolution of the and the protection afforded by the
Supreme Court dated January 11, 1983, constitution against unreasonable
providing for the Interim Rules Relative searches and seizure (Sec. 3, Art.IV). It
to the Implementation of Batas must be equally conceded, however,
Pambansa Blg. 129, which provides that that freedom of the press is not without
a temporary restraining order shall be restraint as the state has the right to
effective only for twenty days from date protect society from pornographic
of its issuance. literature that is offensive to public
morals, as indeed we have laws
On January 9, 1984 defendant filed his punishing the author, publishers and
Comment and/or Rejoinder sellers of obscene publications (Sec. I ,
Memorandum in support of his Art. 201, Revised Penal Code, as
opposition to the issuance of a writ of amended by P.D. No. 960 and P.D. No.
preliminary injunction. 969). Also well settled is the rule that
the right against unreasonable searches
On January 11, 1984, the trial court and seizures recognizes certain
issued an Order setting the case for exceptions, as when there is consent to
hearing on January 16, 1984 "for the the search or seizure, (People vs.
parties to adduce evidence on the Malesugui 63 Phil. 22) or search is an
question of whether the publication incident to an arrest, (People vs. Veloso,
'Pinoy Playboy Magazine alleged (sic) 48 Phil. 169; Alvero vs. Dizon, 76 Phil.
seized, confiscated and/or burned by 637) or is conducted in a vehicle or
the defendants, are obscence per se or movable structure (See Papa vs. Magno,
not". 22 SCRA 857).3

On January 16, 1984, the Court issued The petitioner now ascribes to the respondent court the
an order granting plaintiffs motion to be following errors:
given three days "to file a reply to
defendants' opposition dated January 9, 1. The Court of Appeals erred in
1984, serving a copy thereof to the affirming the decision of the trial court
counsel for the defendants, who may and, in effect, holding that the police
file a rejoinder within the same period officers could without any court
from receipt, after which the issue of warrant or order seize and confiscate
Preliminary Injunction shall be petitioner's magazines on the basis
resolved". simply of their determination that they
are obscene.
Plaintiff's supplemental Memorandum
was filed on January 18, 1984. 2. The Court of Appeals erred in
Defendant filed his Comment on affirming the decision of the trial court
plaintiff s supplemental Memorandum and, in effect, holding that the trial
on January 20, 1984, and plaintiff filed court could dismiss the case on its
his "Reply-Memorandum" to merits without any hearing thereon
defendants' Comment on January 25, when what was submitted to it for
1984. resolution was merely the application of
petitioner for the writ of preliminary
On February 3, 1984, the trial court injunction.4
promulgated the Order appealed from
denying the motion for a writ of The Court states at the outset that it is not the first time
preliminary injunction, and dismissing that it is being asked to pronounce what "obscene"
the case for lack of merit. 2 means or what makes for an obscene or pornographic
literature. Early on, in People vs. Kottinger,5 the Court
The Appellate Court dismissed the appeal upon the laid down the test, in determining the existence of
grounds, among other things, as follows: obscenity, as follows: "whether the tendency of the
matter charged as obscene, is to deprave or corrupt

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those whose minds are open to such immoral influences resist and shield themselves from the ill
and into whose hands a publication or other article and perverting effects of these
charged as being obscene may fall." 6 "Another test," pictures.11
so Kottinger further declares, "is that which shocks the
ordinary and common sense of men as an indecency. xxx xxx xxx
" 7 Kottinger hastened to say, however, that "[w]hether
a picture is obscene or indecent must depend upon the As the Court declared, the issue is a complicated one, in
circumstances of the case, 8 and that ultimately, the which the fine lines have neither been drawn nor
question is to be decided by the "judgment of the divided. It is easier said than done to say, indeed, that if
aggregate sense of the community reached by it." 9 "the pictures here in question were used not exactly for
art's sake but rather for commercial purposes," 12 the
Yet Kottinger, in its effort to arrive at a "conclusive" pictures are not entitled to any constitutional
definition, succeeded merely in generalizing a problem protection.
that has grown increasingly complex over the years.
Precisely, the question is: When does a It was People v. Padan y Alova ,13 however, that
publication have a corrupting tendency, or when can it introduced to Philippine jurisprudence the "redeeming"
be said to be offensive to human sensibilities? And element that should accompany the work, to save it
obviously, it is to beg the question to say that a piece of from a valid prosecution. We quote:
literature has a corrupting influence because it is
obscene, and vice-versa. ...We have had occasion to consider
offenses like the exhibition of still or
Apparently, Kottinger was aware of its own uncertainty moving pictures of women in the nude,
because in the same breath, it would leave the final say which we have condemned for
to a hypothetical "community standard" — whatever obscenity and as offensive to morals. In
that is — and that the question must supposedly be those cases, one might yet claim that
judged from case to case. there was involved the element of art;
that connoisseurs of the same, and
About three decades later, this Court painters and sculptors might find
promulgated People v. Go Pin, 10 a prosecution under inspiration in the showing of pictures in
Article 201 of the Revised Penal Code. Go Pin, was also the nude, or the human body exhibited
even hazier: in sheer nakedness, as models
in tableaux vivants. But an actual
...We agree with counsel for appellant exhibition of the sexual act, preceded
in part. If such pictures, sculptures and by acts of lasciviousness, can have no
paintings are shown in art exhibit and redeeming feature. In it, there is no
art galleries for the cause of art, to be room for art. One can see nothing in it
viewed and appreciated by people but clear and unmitigated obscenity,
interested in art, there would be no indecency, and an offense to public
offense committed. However, the morals, inspiring and causing as it does,
pictures here in question were used not nothing but lust and lewdness, and
exactly for art's sake but rather for exerting a corrupting influence specially
commercial purposes. In other words, on the youth of the land. ...14
the supposed artistic qualities of said
pictures were being commercialized so Padan y Alova, like Go Pin, however, raised more
that the cause of art was of secondary questions than answers. For one thing, if the exhibition
or minor importance. Gain and profit was attended by "artists and persons interested in art
would appear to have been the main, if and who generally go to art exhibitions and galleries to
not the exclusive consideration in their satisfy and improve their artistic tastes," 15 could the
exhibition; and it would not be same legitimately lay claim to "art"? For another,
surprising if the persons who went to suppose that the exhibition was so presented that
see those pictures and paid entrance "connoisseurs of [art], and painters and sculptors might
fees for the privilege of doing so, were find inspiration,"16 in it, would it cease to be a case of
not exactly artists and persons obscenity?
interested in art and who generally go
to art exhibitions and galleries to satisfy Padan y Alova, like Go Pin also leaves too much latitude
and improve their artistic tastes, but for judicial arbitrament, which has permitted an ad
rather people desirous of satisfying lib of Ideas and "two-cents worths" among judges as to
their morbid curiosity and taste, and what is obscene and what is art.
lust, and for love for excitement,
including the youth who because of In a much later decision, Gonzalez v. Kalaw
their immaturity are not in a position to Katigbak,17 the Court, following trends in the United

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States, adopted the test: "Whether to the average but not in the interest of a uniform vision of how
person, applying contemporary standards, the human sexuality should be regarded and portrayed."28
dominant theme of the material taken as a whole
appeals to prurient interest."18 Kalaw- In the case at bar, there is no challenge on the right of
Katigbak represented a marked departure the State, in the legitimate exercise of police power, to
from Kottinger in the sense that it measured obscenity suppress smut provided it is smut. For obvious reasons,
in terms of the "dominant theme" of the work, rather smut is not smut simply because one insists it is smut.
than isolated passages, which were central So is it equally evident that individual tastes develop,
to Kottinger (although both cases are agreed that adapt to wide-ranging influences, and keep in step with
"contemporary community standards" are the final the rapid advance of civilization. What shocked our
arbiters of what is "obscene"). Kalaw- forebears, say, five decades ago, is not necessarily
Katigbak undertook moreover to make the repulsive to the present generation. James Joyce and
determination of obscenity essentially a judicial D.H. Lawrence were censored in the thirties yet their
question and as a consequence, to temper the wide works are considered important literature
discretion Kottinger had given unto law enforcers. today.29 Goya's La Maja desnuda was once banned from
public exhibition but now adorns the world's most
It is significant that in the United States, constitutional prestigious museums.
law on obscenity continues to journey from
development to development, which, states one But neither should we say that "obscenity" is a bare (no
authoritative commentator (with ample sarcasm), has pun intended) matter of opinion. As we said earlier, it is
been as "unstable as it is unintelligible."19 the divergent perceptions of men and women that have
probably compounded the problem rather than
Memoirs v. Massachusettes,20 a 1966 decision, which resolved it.
characterized obscenity as one "utterly without any
redeeming social value,"21 marked yet another What the Court is impressing, plainly and simply, is that
development. the question is not, and has not been, an easy one to
answer, as it is far from being a settled matter. We
The latest word, however, is Miller v. California,22 which share Tribe's disappointment over the discouraging
expressly abandoned Massachusettes, and established trend in American decisional law on obscenity as well as
"basic guidelines,"23 to wit: "(a) whether 'the average his pessimism on whether or not an "acceptable"
person, applying contemporary standards' would find solution is in sight.
the work, taken as a whole, appeals to the prurient
interest . . .; (b) whether the work depicts or describes, In the final analysis perhaps, the task that confronts us
in a patently offensive way, sexual conduct specifically is less heroic than rushing to a "perfect" definition of
defined by the applicable state law; and (c) whether the "obscenity", if that is possible, as evolving standards for
work, taken as a whole, lacks serious literary, artistic, proper police conduct faced with the problem, which,
political, or scientific value."24 after all, is the plaint specifically raised in the petition.

(A year later, the American Supreme Court However, this much we have to say.
decided Hamling v. United States 25 which
repeated Miller, and Jenkins v. Georgia, 26 yet another Undoubtedly, "immoral" lore or literature comes within
reiteration of Miller. Jenkins, curiously, acquitted the the ambit of free expression, although not its
producers of the motion picture, Carnal Knowledge, in protection. In free expression cases, this Court has
the absence of "genitals" portrayed on screen, although consistently been on the side of the exercise of the
the film highlighted contemporary American sexuality.) right, barring a "clear and present danger" that would
warrant State interference and action.30 But, so we
The lack of uniformity in American jurisprudence as to asserted in Reyes v. Bagatsing,31 "the burden to show
what constitutes "obscenity" has been attributed to the the existence of grave and imminent danger that would
reluctance of the courts to recognize the constitutional justify adverse action ... lies on the. . . authorit[ies]."32
dimension of the problem .27 Apparently, the courts
have assumed that "obscenity" is not included in the "There must be objective and convincing, not subjective
guaranty of free speech, an assumption that, as we or conjectural, proof of the existence of such clear and
averred, has allowed a climate of opinions among present danger."33 "It is essential for the validity of ...
magistrates predicated upon arbitrary, if vague theories previous restraint or censorship that the ...
of what is acceptable to society. And "[t]here is little authority does not rely solely on his own appraisal of
likelihood," says Tribe, "that this development has what the public welfare, peace or safety may require."34
reached a state of rest, or that it will ever do so until the
Court recognizes that obscene speech is speech "To justify such a limitation, there must be proof of
nonetheless, although it is subject — as in all speech — such weight and sufficiency to satisfy the clear and
to regulation in the interests of [society as a whole] — present danger test."35

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The above disposition must not, however, be taken as a Sec. 2. Disposition of the Prohibited
neat effort to arrive at a solution-so only we may arrive Articles. — The disposition of the
at one-but rather as a serious attempt to put the literature, films, prints, engravings,
question in its proper perspective, that is, as a genuine sculptures, paintings, or other materials
constitutional issue. involved in the violation referred to in
Section 1 hereof (Art. 201), RPC as
It is also significant that in his petition, the petitioner amended) shall be governed by the
asserts constitutional issues, mainly, due process and following rules:
illegal search and seizure.
(a) Upon conviction of the offender, to
As we so strongly stressed in Bagatsing, a case involving be forfeited in favor of the Government
the delivery of a political speech, the presumption is to be destroyed.
that the speech may validly be said. The burden is on
the State to demonstrate the existence of a danger, a (b) Where the criminal case against any
danger that must not only be: (1) clear but also, (2) violator of this decree results in an
present, to justify State action to stop the speech. acquittal, the obscene/immoral
Meanwhile, the Government must allow it (the speech). literature, films, prints, engravings,
It has no choice. However, if it acts notwithstanding sculptures, paintings or other materials
that (absence of evidence of a clear and present and articles involved in the violation
danger), it must come to terms with, and be held referred to in Section 1 (referring to Art.
accountable for, due process. 201) hereof shall nevertheless be
forfeited in favor of the government to
The Court is not convinced that the private respondents be destroyed, after forfeiture
have shown the required proof to justify a ban and to proceedings conducted by the Chief of
warrant confiscation of the literature for which Constabulary.
mandatory injunction had been sought below. First of
all, they were not possessed of a lawful court order: (1) (c) The person aggrieved by the
finding the said materials to be pornography, and (2) forfeiture action of the Chief of
authorizing them to carry out a search and seizure, by Constabulary may, within fifteen (15)
way of a search warrant. days after his receipt of a copy of the
decision, appeal the matter to the
The Court of Appeals has no "quarrel that ... freedom of Secretary of National Defense for
the press is not without restraint, as the state has the review. The decision of the Secretary of
right to protect society from pornographic literature National Defense shall be final and
that is offensive to public morals." 36 Neither do we. But unappealable. (Sec. 2, PD No, 960 as
it brings us back to square one: were the "literature" so amended by PD No. 969.)
confiscated "pornographic"? That we have laws
punishing the author, publisher and sellers of obscence Sec. 4. Additional Penalties. —
publications (Sec. 1, Art. 201, Revised Penal Code, as Additional penalties shall be imposed as
amended by P.D. No. 960 and P.D. No. 969)," 37 is also follows:
fine, but the question, again, is: Has the petitioner been
found guilty under the statute? 1. In case the offender is a government
official or employee who allows the
The fact that the former respondent Mayor's act was violations of Section I hereof, the
sanctioned by "police power" is no license to seize penalty as provided herein shall be
property in disregard of due process. In Philippine imposed in the maximum period and, in
Service Exporters, Inc. v. Drilon,38 We defined police addition, the accessory penalties
power as "state authority to enact legislation that may provided for in the Revised Penal Code,
interfere with personal liberty or property in order to as amended, shall likewise be
promote the general welfare ."39 Presidential Decrees imposed .40
Nos. 960 and 969 are, arguably, police power measures,
but they are not, by themselves, authorities for high- Under the Constitution, on the other hand:
handed acts. They do not exempt our law enforcers, in
carrying out the decree of the twin presidential SEC. 3. The right of the people to be
issuances (Mr. Marcos'), from the commandments of secure in their persons, houses, papers,
the Constitution, the right to due process of law and the and effects against unreasonable
right against unreasonable searches and seizures, searches and seizures of whatever
specifically. Significantly, the Decrees themselves lay nature and for any purpose shall not be
down procedures for implementation. We quote: violated, and no search warrant or
warrant of arrest shall issue except
upon probable cause to be determined

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 by the judge, or such other responsible 2. The authorities must convince the
officer as may be authorized by law, court that the materials sought to be
after examination under oath or seized are "obscene", and pose a clear
affirmation of the complainant and the and present danger of an evil
witnesses he may produce, and substantive enough to warrant State
particularly describing the place to be interference and action;
searched, and the persons or things to
be seized. 3. The judge must determine whether
or not the same are indeed "obscene:"
It is basic that searches and seizures may be done only the question is to be resolved on a case-
through a judicial warrant, otherwise, they become to-case basis and on His Honor's sound
unreasonable and subject to challenge. In Burgos v. discretion.
Chief of Staff, AFP, 43 We counter-minded the orders of
the Regional Trial Court authorizing the search of the 4. If, in the opinion of the court,
premises of We Forum and Metropolitan Mail, two probable cause exists, it may issue the
Metro Manila dailies, by reason of a defective warrant. search warrant prayed for;
We have greater reason here to reprobate the
questioned raid, in the complete absence of a warrant, 5. The proper suit is then brought in the
valid or invalid. The fact that the instant case involves court under Article 201 of the Revised
an obscenity rap makes it no different from Burgos, a Penal Code;
political case, because, and as we have indicated,
speech is speech, whether political or "obscene". 6. Any conviction is subject to appeal.
The appellate court may assess whether
The Court is not ruling out warrantless searches, as the or not the properties seized are indeed
Rules of Court (1964 rev.) (the Rules then prevailing), "obscene".
provide:
These do not foreclose, however, defenses under the
SEC. 12. Search without warrant of Constitution or applicable statutes, or remedies against
personarrested. — A person charged abuse of official power under the Civil Code" 47 or the
with an offense may be searched for Revised Penal code .48
dangerous weapons or anything which
may be used as proof of the WHEREFORE, the petition is GRANTED. The decision of
commission of the offense.44 the respondent court is REVERSED and SET ASIDE. It
appearing, however, that the magazines subject of the
but as the provision itself suggests, the search must search and seizure have been destroyed, the Court
have been an incident to a lawful arrest, and the arrest declines to grant affirmative relief. To that extent, the
must be on account of a crime committed. Here, no case is moot and academic.
party has been charged, nor are such charges being
readied against any party, under Article 201, as SO ORDERED.
amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no

constitutional nor legal provision which would free the
accused of all criminal responsibility because there had
been no warrant," 45 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 resume.

1. The authorities must apply for the

issuance of a search warrant from a
judge, if in their opinion, an obscenity
rap is in order;

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