ELISEO F. SORIANO, petitioner, vs. MA. CONSOLIZA P.
LAGUARDIA, in her Petitioner's threshold posture that the suspension thus imposed constitutes
capacity as Chairperson of the Movie and Television Review and
Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR.,
MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, respondents.
[G.R. No. 165636. March 15, 2010.]
ELISEO F. SORIANO, petitioner, vs. MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO,
NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and
FLORIMONDO C. ROUS, in their capacity as members of the Hearing and
Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M.
DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in
their capacity as complainants before the MTRCB, respondents.
RESOLUTION
VELASCO, JR., J p:
Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of
the Decision of the Court dated April 29, 2009, modifying that of the Movie
and Television Review and Classification Board (MTRCB) by imposing the
penalty of three-month suspension on the television show Ang Dating Daan,
instead of on petitioner Soriano, as host of that program.
Petitioner seeks reconsideration on the following grounds or issues: (1) the
suspension thus meted out to the program constitutes prior restraint; (2)
the Court erred in ruling that his utterances 1 did not constitute exercise of
religion; (3) the Court erred in finding the language used as offensive and
obscene; (4) the Court should have applied its policy of non-interference in
cases of conflict between religious groups; and (5) the Court erred in
penalizing the television program for the acts of petitioner.
The motion has no merit.
1
prior restraint and an abridgement of his exercise of religion and freedom of
expression is a mere rehash of the position he articulated in the underlying
petitions for certiorari and expounded in his memorandum. 2 So are the
supportive arguments and some of the citations of decisional law,
Philippine and American, holding it together. They have been considered,
sufficiently discussed in some detail, and found to be without merit in our
Decision. It would, thus, make little sense to embark on another lengthy
discussion of the same issues and arguments.
Suffice it to reiterate that the sanction imposed on the TV program in
question does not, under the factual milieu of the case, constitute prior
restraint, but partakes of the nature of subsequent punishment for past
violation committed by petitioner in the course of the broadcast of the
program on August 10, 2004. To be sure, petitioner has not contested the
fact of his having made statements on the air that were contextually
violative of the program's "G" rating. To merit a "G" rating, the program
must be "suitable for all ages," which, in turn, means that the "material for
television [does not], in the judgment of the [MTRCB], . . . contain anything
unsuitable for children and minors, and may be viewed without adult
guidance or supervision." 3 As previously discussed by the Court, the vulgar
language petitioner used on prime-time television can in no way be
characterized as suitable for all ages, and is wholly inappropriate for
children. cAEaSC
Petitioner next harps on the primacy of his freedoms, referring particularly
to the exercise of his religious beliefs and profession, as presiding minister
of his flock, over the right and duty of the state as parens patriae.
Petitioner's position may be accorded some cogency, but for the fact that it
fails to consider that the medium he used to make his statements was a
television broadcast, which is accessible to children of virtually all ages. As
already laid down in the Decision subject of this recourse, the interest of
the government in protecting children who may be subjected to petitioner's
invectives must take precedence over his desire to air publicly his dirty
laundry. The public soapbox that is television must be guarded by the state,
which purpose the MTRCB serves, and has served, in suspending Ang
Dating Daan for petitioner's statements. As emphasized in Gonzalez v.
Kalaw Katigbak, 4 the freedom of broadcast media is, in terms of degree of
protection it deserves, lesser in scope, especially as regards television,
which reaches every home where there is a set, and where children will
likely be among the avid viewers of the programs shown. The same case
also laid the basis for the classification system of the MTRCB when it stated,
"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." 5
The penalty of suspension imposed on petitioner has driven him to liken the
Court to "a blind man who was asked to describe an elephant, and by his
description he stubbornly believed that an elephant is just the same as a
Meralco post after touching one if its legs." 6 Petitioner makes this
comparison with the view that the factual backdrop against which his
statements were made was purportedly not considered by the Court. As he
presently argues:
The Honorable Court should have rendered its decision in light of the
surrounding circumstances why and what prompted herein petitioner to
utter those words. Clearly, he was provoked because of the malicious and
blatant splicing by the INC ministers of his recorded voice. Verily, Petitioner
submits that the choice of words he used has been harsh but strongly
maintains that the same was consistent with his constitutional right of
freedom of speech and religion.
Contrary to petitioner's impression, the Court has, in fact, considered the
factual antecedents of and his motive in making his utterances, and has
found those circumstances wanting as defense for violating the program's
"G" rating. Consider the following excerpts from the Court's Decision:
There is nothing in petitioner's statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with his statements in a
televised bible exposition program does not automatically accord them the
character of a religious discourse. Plain and simple insults directed at
another person cannot be elevated to the status of religious speech. Even
petitioner's attempts to place his words in context show that he was moved
by anger and the need to seek retribution, not by any religious conviction.
His claim, assuming its veracity, that some INC ministers distorted his
statements respecting amounts Ang Dating Daan owed to a TV station does
not convert the foul language used in retaliation as religious speech. We
cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or
refutation of the alleged lies being spread by a rival religious group. They
simply illustrate that petitioner had descended to the level of name-calling
and foul-language discourse. Petitioner could have chosen to contradict and
disprove his detractors, but opted for the low road. THESAD
And just to set things straight, the penalty imposed is on the program, not
on petitioner.
Petitioner would next have the Court adopt a hands-off approach to the
conflict between him and the Iglesia ni Cristo. In support of his urging, he
cites Iglesia ni Cristo v. Court of Appeals. 7
2
Petitioner's invocation of Iglesia ni Cristo to support his hands-off thesis is
erroneous. Obviously, he fails to appreciate what the Court stated in that
particular case when it rejected the argument that a religious program is
beyond MTRCB's review and regulatory authority. We reproduce what the
Court pertinently wrote in Iglesia ni Cristo:
We thus reject petitioner's postulate that its religious program is per se
beyond review by the respondent [MTRCB]. Its public broadcast on TV of its
religious program brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children. The Court iterates
the rule that the exercise of religious freedom can be regulated by the
State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our
country today. Across the sea and in our shore, the bloodiest and bitterest
wars fought by men were caused by irreconcilable religious differences. Our
country is still not safe from the recurrence of this stultifying strife
considering our warring religious beliefs and the fanaticism with which
some of us cling and claw to these beliefs. . . . For when religion divides and
its exercise destroys, the State should not stand still. 8 (Emphasis added.)
ATcaHS
Lastly, petitioner claims that there was violation of due process of law,
alleging that the registered producer of the program is not a party to the
proceedings. Hence, the program cannot, so petitioner asserts, be
penalized.
We will let the records speak for themselves to refute that argument.
As per petitioner's admission in his petition for certiorari filed with the
Court, he is "the Executive Producer of Ang Dating Daan, a televised bible
exposition program produced by the Philippine-based religious organization,
Church of God International." 9 It is unclear, then, which producer the
movant is referring to in claiming that there was no representation before
the MTRCB. He was and is the representative of Ang Dating Daan, and the
claim that there was no due process of law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant
motion, certain relevant issues have been raised by some members of the
Court that ought to be addressed if only to put things in their proper
perspective. We refer to the matter of obscenity.
As stressed at every possible turn in the challenged Court's Decision, the
defining standards to be employed in judging the harmful effects of the
statements petitioner used would be those for the average child, not those
for the average adult. We note that the ratings and regulation of television
broadcasts take into account the protection of the child, and it is from the
child's narrow viewpoint that the utterances must be considered, if not
measured. The ratings "G," "PG" (parental guidance), "PG-13," and "R"
(restricted or for adults only) suggest as much. The concern was then, as
now, that the program petitioner hosted and produced would reach an
unintended audience, the average child, and so it is how this audience
would view his words that matters. The average child would not be
concerned with colorful speech, but, instead, focus on the literal, everyday
meaning of words used. It was this literal approach that rendered
petitioner's utterances obscene.
The Court has taken stock of Action for Children's Television v. FCC, 10 but
finds this U.S. case not to be of governing application to this jurisdiction
under the present state of things. The so-called "safe harbor"' of 10:00 p.m.
to 6:00 a.m., adverted to in Action for Children's Television as the time
wherein broadcast of indecent material may be permitted, is believed
inapplicable here. As it were, there is no legislative enactment or executive
issuance setting a similar period in the Philippines wherein indecent
material may be broadcast. Rather than fix a period for allowing indecent
programming, what is used in this jurisdiction is the system of classification
of television programs, which the petitioner violated. His program was rated
"G," purported to be suitable for all ages. We cannot lose sight of the
violation of his program's classification that carried with it the producer's
implied assurance that the program did not contain anything unsuitable for
children and minors. The hour at which it was broadcasted was of little
moment in light of the guarantee that the program was safe for children's
viewing.
The suspension of the program has not been arrived at lightly. Taking into
account all the factors involved and the arguments pressed on the Court,
the suspension of the program is a sufficiently limited disciplinary action,
both to address the violation and to serve as an object lesson for the future.
The likelihood is great that any disciplinary action imposed on petitioner
would be met with an equally energetic defense as has been put up here.
The simple but stubborn fact is that there has been a violation of
government regulations that have been put in place with a laudable
purpose, and this violation must accordingly be dealt with. We are not
unmindful of the concerns on the restriction of freedoms that may occur in
imposing sanctions upon erring individuals and institutions, but it cannot be
over-emphasized that the freedoms encased in the Bill of Rights are far
from absolute. Each has its own limits, responsibilities, and obligations.
Everyone is expected to bear the burden implicit in the exercise of these
freedoms. So it must be here. CSHEAI
3
WHEREFORE, petitioner's motion for reconsideration is hereby DENIED.
No further pleadings shall be entertained in this case. Let entry of judgment
be made in due course.
SO ORDERED.
Corona, Nachura, Leonardo-de Castro, Peralta, Bersamin, Del Castillo,
Villarama, Jr., Perez and Mendoza, JJ., concur.
Puno, C.J., I reiterate my dissent in the original decision.
Carpio, J., see dissenting opinion.
Carpio Morales, J., I maintain my concurrence with the dissent to the
original opinion hence, I vote to grant the present motion.
Brion, J., I concur in accordance with the original separate opinion of J.
Renato Corona.
Abad, J., see my dissenting opinion.
Separate Opinions
CARPIO, J., dissenting:
Liberty is a right that inheres in every one of us as a member of the human
family. When a person is deprived of his right, all of us are diminished and
debased for liberty is total and indivisible. 1
Among the cherished liberties in a democracy such as ours is freedom of
expression. A democracy needs a healthy public sphere where the people
can exchange ideas, acquire knowledge and information, confront public
issues, or discuss matters of public interest, without fear of reprisals. 2 Free
speech must be protected so that the people can engage in the discussion
and deliberation necessary for the successful operation of democratic
institutions. 3 Thus, no less than our Constitution mandates full protection
to freedom of speech, of expression, and of the press. 4 All of the
protections expressed in the Bill of Rights are important, but the courts
have accorded to free speech the status of a preferred freedom. This
qualitative significance of freedom of expression arises from the fact that it
is the indispensable condition of nearly every other freedom. 5 AcSHCD
The freedom of expression clause is precisely a guarantee against both
prior restraint and subsequent punishment. It protects from any undue
interference by the government the people's right to freely speak their
minds. The guarantee rests on the principle that freedom of expression is
essential to a functioning democracy and suppression of expression leads
to authoritarianism.
Prior restraint has been defined as official governmental restrictions on any
form of expression in advance of actual dissemination. But the mere
prohibition of government interference before words are spoken is not an
adequate protection of the freedom of expression if the government could
arbitrarily punish after the words have been spoken. The threat of
subsequent punishment itself would operate as a very effective prior
restraint. 6
Any form of prior restraint bears a presumption against its constitutional
validity. The burden is on the censor to justify any imposition of prior
restraint, not on the censored to put up a defense against it. In the case of
print media, it has been held that just because press freedom may
sometimes be abused does not mean that the press does not deserve
immunity from prior restraint. The settled rule is that any such abuse may
be remedied by subsequent punishment. 7
This Court, in Eastern Broadcasting Corporation v. Dans, Jr., 8 laid down the
following guideline:
All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and present
danger rule that words 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 the lawmaker has a right to prevent.
Chief Justice Fernando expounded on the meaning of the "clear and present
danger" test in Gonzalez v. Chairman Katigbak, 9 to wit:
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 must also be 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.
4
Where the medium of a television broadcast is concerned, as in the case at
hand, well-entrenched is the rule that censorship 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. 10 TCEaDI
One of the established exceptions in freedom of expression is speech
characterized as obscene. I will briefly discuss obscenity as the majority
opinion characterized the subject speech in this case as obscene, thereby
taking the speech out of the scope of constitutional protection.
The leading test for determining what material could be considered
obscene was the famous Regina v. Hicklin 11 case wherein Lord Cockburn
enunciated thus:
I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences, and into whose hands a publication of this
sort may fall.
Judge Learned Hand, in United States v. Kennerly, 12 opposed the strictness
of the Hicklin test even as he was obliged to follow the rule. He wrote:
I hope it is not improper for me to say that the rule as laid down, however
consonant it may be with mid-Victorian morals, does not seem to me to
answer to the understanding and morality of the present time.
Roth v. United States 13 laid down the more reasonable and thus, more
acceptable test for obscenity: "whether to the average person, applying
contemporary community standards, the dominant theme of the material
taken as a whole appeals to prurient interest." Such material is defined as
that which has "a tendency to excite lustful thoughts," and "prurient
interest" as "a shameful or morbid interest in nudity, sex, or excretion."
Miller v. California 14 merely expanded the Roth test to include two
additional criteria: "the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law; and
the work, taken as whole, lacks serious literary, artistic, political, or
scientific value." The basic test, as applied in our jurisprudence, 15 extracts
the essence of both Roth and Miller that is, whether the material appeals
to prurient interest.
The present controversy emanated from the alleged splicing of a video
recording wherein petitioner was supposedly made to appear as if he was
asking for contributions to raise 37 trillion pesos instead of the allegedly
true amount of 3.6 million pesos. The video was played by ministers of
Iglesia ni Cristo in their television program "Ang Tamang Daan."
In response, petitioner Eliseo Soriano, as host of the television program
"Ang Dating Daan," made the following utterances: 16
Bro. Josel Mallari:
Ulit-ulit na iyang talagang kawalanghiyaan na iyan, naku. E, markado nang
masyado at saka branded na itong nga ito anong klase po sila. Wala kayong
babalikan diyan Kapatid na Manny. Iyang klase ng mga ministro na iyan,
pasamain lamang si Kapatid na Eli e pati mga ninakaw na tape, pati mga
audio na pinag-edit-edit, lalagyan ng caption para makita nila, maipakita
nilang malinaw 'yung panloloko nila. Kasi Sis. Luz, puwede mo nang hindi
lagyan ng caption e, patunugin mo na lang na ganun ang sinasabi. Pero
talagang para mai-emphasize nila 'yung kanilang kawalanghiyaan, lalagyan
pa nila ng caption na hindi naman talagang sinabi ni Bro. Eli kundi
pinagdugtong lang 'yung audio. AEIDTc
Bro. Eli Soriano:
At saka ang malisyoso. Kitang-kita malisyoso e. Paninirang-puri e. Alam mo
kung bakit? Mahilig daw ako talagang manghingi para sa aking
pangangailangan. Pangangailangan ko ba 'yung pambayad sa UNTV e ang
mga kontrata diyan ay hindi naman ako kapatid na Josel.
Bro. Josel Mallari:
Ay, opo.
Bro. Eli Soriano:
5
Hindi ko kontrata iyang babayaran na iyan. I am not even a signatory to
that contract. Pagkatapos para pagbintangan mo ako na humingi ako para
sa pangangailangan ko, gago ka talaga Michael. Masahol ka pa sa putang
babae. O, di ba? Yung putang babae ang gumagana lang doon yung ibaba,
kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang
babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
kasinungalingan ng mga demonyong ito. Sige, sumagot kayo. At habang
ginaganyan ninyo ako, ang mga miyembro ninyo unti-unting maliliwanagan.
Makikita n'yo rin, magreresulta ng maganda iyan.
Bro. Manny Catangay Jusay:
Bro. Eli, ay iyan nga po ang sinasabi ko e, habang gumagawa sila ng
ganyan, gaya nung sinabi nung Kapatid natin kagabi dahil napanood 'yung
kasinungalingan ni Pol Guevarra, ay, lumuluha 'yung Kapatid, inaanyayahan
'yung mag-anak niya. Magsialis na kayo diyan. Lipat na kayo rito. Kasi kung
nag-iisip lang ang isang Iglesia ni Cristo matapos ninyong mapanood itong
episode na ito, iiwanan ninyo e, kung mahal ninyo ang kaluluwa ninyo.
Hindi kayo paaakay sa ganyan, nagpafabricate ng mga kasinungalingan.
Sabi ko nga lahat ng paraan ng pakikipagbaka nagawa na nila e, isa na lang
ang hindi 'yung pakikipagdebate at patunayan na sila ang totoo. Iyon na
lang ang hindi nila nagagawa. Pero demanda, paninirang-puri nagtataka
nga ako e, tayo, kaunting kibot, nakademanda sila e, 'yung ginagawa nila,
ewan ko, idinedemanda n'yo ba Bro. Eli?
The majority opinion ruled that the highlighted portion of the aforequoted
speech was obscene and was, therefore, not entitled to constitutional
protection.
Well-settled is the rule that speech, to be considered obscene, must appeal
to prurient interest as defined in Roth and firmly adopted in our jurisdiction.
17 The subject speech cannot, by any stretch of the imagination, be said to
appeal to any prurient interest. The highlighted portion of the verbal
exchange between the two feuding religious groups is utterly bereft of any
tendency to excite lustful thoughts as to be deemed obscene. The
majority's finding of obscenity is clearly untenable. DIEACH
In contrast, a radio broadcast of a monologue replete with indecent words
such as shit, piss, fuck, cunt, cocksucker, motherfucker, and tits, has been
held protected speech depending on the context relating to the time of
broadcast. 18 However, in this case before us, the words "putang babae"
(female prostitute), and the descriptive action phrases "ang gumagana lang
doon yung ibaba" and "kay Michael ang gumagana ang itaas" were enough
to constitute outright obscenity for the majority. The majority opinion
simply forced these words and phrases into a strained standard formula for
censorship. But such overbroad standard must be struck down for it
indiscriminately infringes upon free speech.
The subject speech in this case may, at most, be considered indecent
speech.
Indecent speech conveyed through the medium of broadcast is a case of
first impression in our jurisdiction. However, this issue has been settled in
American case law, which has persuasive influence in our jurisprudence.
There, the rule is that indecent speech is protected depending on the
context in which it is spoken. The concept of what is "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
organs, at times of the day when there is a reasonable risk that children
may be in the audience. 19
FCC v. Pacifica Foundation 20 is the landmark U.S. case on the regulation of
indecent speech in broadcast. The case involved a radio broadcast of "Filthy
Words," a 12-minute monologue by American stand-up comedian and social
critic, George Carlin. Appended to the decision is the following verbatim
transcript prepared by the Federal Communications Commission:
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 maybe, even bring us, God help us, peace without
honor and a bourbon. And now the first thing that we noticed 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. You want to be a
purist, 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 and the word cock is a half-way dirty word, 50% dirty-
dirty half the time, depending on what you mean by it. Uh, remember when
you first heard it, like in 6th grade, you used to giggle. And the cock crowed
three times, the cock-three times. It's in the Bible, cock in the Bible. And
the first time you heard about a cock-fight, remember-What? Huh? It ain't
that, are you stupid? It's chickens, you know, Then you have the four letter
words from the old Angle-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. 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
6
before she knows. She says, Oh shit oh shit, oh shit. If she drops something,
Oh, the shit hurt the broccoli. Shit. Thank you. aIDHET
Shit! I won the Grammy, man, for the comedy album. Isn't that groovy?
That's true. Thank you. Thank you man. Yeah. Thank you man. Thank you.
Thank you very much, man. Thank, no, for that and for the Grammy, man,
[']cause that's based on people liking it man, that's okay man. Let's let that
go, man. I got my Grammy. I can let my hair hang down now, shit. 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, will ya? I don't want to see
that shit anymore. I can't cut that shit, buddy. I've had that shit up to here. I
think you're full of shit myself. He don't know shit from Shinola, you know
that? Always wondered how the Shinola people felt about that Hi, I'm the
new man from Shinola, Hi, how are ya? Nice to see ya. How are ya? Boy, I
don't know whether to shit or wind my watch. Guess, I'll shit on my watch.
Oh, the shit is going to hit de fan. Built like a brick shit-house. Up, he's up
shit's creek. He's had it. He hit me, I'm sorry. Hot shit, holy shit, tough shit,
eat shit, shit-eating grin. Uh, whoever thought of that was ill. He had a shit-
eating grin! He had a what? Shit on a stick. Shit in a handbag. I always like
that. He ain't worth shit in a handbag. Shitty. He acted real shitty. You know
what I mean? I got the money back, but a real shitty attitude. Heh, he had a
shit-fit. Wow! Shit-fit. Whew! Glad I wasn't there. All the animals-Bull shit,
horse shit, cow shit, rat shit, bat shit. First time I heard bat shit, I really
came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit. Vera
reminded me of that last night. Snake shit, slicker than owl shit. Get your
shit together. Shit or get off the pot. I got a shit-load full of them. I got a
shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains,
shit-face. 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. Hey,
I'm shit-face. Shit-face, today. Anyway, enough of that shit. 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 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. Fuck.
You know, it's easy. Starts with a nice soft sound fuh ends with a kuh. Right?
A little something for everyone. Fuck Good word. Kind of a proud word, too.
Who are you? I am FUCK, FUCK OF THE MOUNTAIN. Tune in again next week
to FUCK OF THE MOUNTAIN. It's an interesting word too, [']cause it's got a
double kind of a life-personality-dual, you know, whatever the right phrase
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, 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 one that you have toward the end
of the argument. Right? You finally can't make out. Oh, fuck you man. I said,
fuck you. Stupid fuck. Fuck you and everybody that looks like you 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.
The other shit one was, I don't give a shit. Like it's worth something, you
know? I don't give a shit. Hey, well, I don't take no shit, you know what I
mean? You know why I don't take no shit? [']Cause I don't give a shit. If I
give a shit, I would have to pack shit. But I don't pack no shit cause I don't
give a shit. You wouldn't shit me, would you? That's a joke when you're a
kid with a worm looking out the bird's ass. You wouldn't shit me, would you?
It's an eight-year-old joke but a good one. 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. 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? 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. 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. 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. You can't say, up your ass.
You can say, stuff it!
Worthy of note, in Pacifica, the FCC did not resort to any subsequent
punishment, much less any prior restraint. 21 The station was not
suspended for the broadcast of the monologue, which the U.S. Supreme
Court merely considered indecent speech based on the context in which it
was delivered. According to the U.S. Supreme Court, the monologue would
have been protected were it delivered in another context. The monologue
was broadcast at 2:00 p.m., when children were presumptively in the
audience.
A later case, Action for Children's Television v. FCC, 22 establishes the safe
harbor period to be from 10:00 in the evening to 6:00 in the morning, when
the number of children in the audience is at a minimum. In effect, between
the hours of 10:00 p.m. and 6:00 a.m., the broadcasting of material
7
considered indecent is permitted. Between the hours of 6:00 a.m. and
10:00 p.m., the broadcast of any indecent material may be sanctioned.
In this case, the subject speech by petitioner was broadcast starting 10:00
p.m. onwards, clearly within the safe harbor period as established in Action
for Children's Television. Correctly applying Pacifica's context-based ruling,
petitioner's speech, if indeed indecent, enjoys constitutional protection and
may not be sanctioned. The rule on this matter, as laid down by Pacifica in
relation to Action for Children's Television, is crystal-clear. But should the
majority still have any doubt in their minds, such doubt should be resolved
in favor of free speech and against any interference by government. The
suspension of "Ang Dating Daan" by the MTRCB was a content-based, not a
content-neutral regulation. Thus, the suspension should have been
subjected to strict scrutiny following the rule in Chavez v. Gonzales. 23 The
test should be strict because the regulation went into the very heart of the
rationale for the right to free speech that speech may not be prohibited
just because government officials disapprove of the speaker's views. 24
TCDHIc
Further, the majority opinion held that even if petitioner's utterances were
not obscene but merely indecent speech, they would still be outside of the
constitutional protection because they were conveyed through a medium
easily accessible to children. The majority misapplied the doctrine of FCC v.
Pacifica, the leading jurisprudence on this matter. Pacifica did not hold that
indecent speech, when conveyed through a medium easily accessible to
children, would automatically be outside the constitutional protection. On
the contrary, the U.S. Supreme Court emphasized the narrowness of its
ruling in Pacifica. The guideline that Pacifica laid down is that the broadcast
of a monologue containing indecent speech could be considered protected
or unprotected depending on the context, that is, the time of the day or the
night when the indecent utterances were delivered.
The majority's ruling in this case sets a dangerous precedent. This decision
makes it possible for any television or radio program, on the slightest
suspicion of being a danger to national security or on other pretexts, to
likewise face suspension. The exacting "clear and present danger" test is
dispensed with to give way to the "balancing of interests" test in favor of
the government's exercise of its regulatory power. Granting without
conceding that "balancing of interests" is the appropriate test in setting a
limitation to free speech, suspension of a television program is a measure
way too harsh that it would be inappropriate as the most reasonable means
for averting a perceived harm to society. The restriction on freedom need
not be greater than is necessary to further the governmental interest. 25
The "balancing of interests" test requires that a determination must first be
made whether the necessary safeguarding of the public interest involved
may be achieved by some other measure less restrictive of the protected
freedom. 26 The majority immediately resorted to outright suspension
without first exploring other measures less restrictive of freedom of speech.
It cites MTRCB v. ABS-CBN Broadcasting Corporation 27 in justifying the
government's exercise of regulatory power. But the ABS-CBN case involved
a mere fine as punishment, not a prior restraint in the form of suspension
as in this case. In the cited case, one of the episodes of "The Inside Story,"
a television program of ABS-CBN, was aired without prior review and
approval by the MTRCB. For this omission, the MTRCB subsequently fined
ABS-CBN in the amount of P20,000. However, even as the television station
was fined, the program continued to be aired and was never suspended.
Indeed, prior restraint by suspension is an extreme measure that may only
be imposed after satisfying the "clear and present danger" test, which
requires the perceived danger to be both grave and imminent. Prior
restraint is simply uncalled for in this case where what is involved is not
even obscene speech, but mere indecent speech. Note too, that the subject
utterances in this case were broadcast starting 10:00 p.m. onwards, well
within the safe harbor period for permissible television broadcast of speech
which may be characterized as indecent. HEacDA
Suspension of the program stops not only petitioner, but also the other
leaders of his congregation from exercising their constitutional right to free
speech through their medium of choice, which is television. The majority
opinion attempts to assuage petitioner's misery by saying that petitioner
can still exercise his right to speak his mind using other venues. But this
proposition assumes that petitioner has access to other venues where he
may continue his interrupted exercise of free speech using his chosen
mode, television broadcast.
While we may not agree with petitioner's choice of language in expressing
his disgust in this word war between two feuding religious groups, let us not
forget that freedom of speech includes the expression of thoughts that we
do not approve of, not just thoughts that are agreeable. 28 To paraphrase
Voltaire: We may disapprove of what petitioner has said, but we must
defend to the death his right to say it.
The three-month suspension cannot be passed off merely as a preventive
suspension that does not partake of a penalty. The actual and real effect of
the three-month suspension is a prior restraint on expression in violation of
a fundamental constitutional right. Even Congress cannot validly pass a law
imposing a three-month preventive suspension on freedom of expression
for offensive or vulgar language uttered in the past. Congress may punish
such offensive or vulgar language after their utterance, with damages, fine,
or imprisonment; but Congress has no power to suspend or suppress the
people's right to speak freely because of such utterances. In short,
Congress may pass a law punishing defamation or tortious speech but the
punishment cannot be the suspension or suppression of the constitutional
8
right to freedom of expression. Otherwise, such law would be abridging the
freedom of speech, of expression, or of the press. If Congress cannot pass
such a law, neither can respondent MTRCB promulgate a rule or a decision
suspending for three months petitioner's constitutional right to freedom of
speech. And of course, neither can this Court give its stamp of imprimatur
to such an unconstitutional MTRCB rule or decision. cSIADH
I end this dissenting opinion with a reminder from Justice Oliver Wendell
Holmes that the market place of ideas is still the best alternative to
censorship. 29 The market place of ideas makes freedom of speech robust
and allows people to be more tolerant of opposing views. It has been said
that freedom of speech is not only to freely express oneself within the
context of the law but also to hear what others say, that all may be
enlightened, regardless of how obnoxious or erroneous the opposing views
may be. 30
Accordingly, I vote to GRANT the motion for reconsideration.
ABAD, J., dissenting:
I am submitting this dissent to the ably written ponencia of Justice
Presbiterio J. Velasco, Jr. that seeks to deny the petitioner's motion for
reconsideration of the Court's decision in the case.
Brief Antecedent
Petitioner Eliseo F. Soriano, a television evangelist, hosted the Ang Dating
Daan, a popular television ministry aired nationwide everyday from 10:00
p.m. to midnight over public television. The program carried a "general
patronage" rating from the Movie and Television Review and Classification
Board (MTRCB).
The Ang Dating Daan's rivalry with another religious television program, the
Iglesia ni Cristo's Ang Tamang Daan, is well known. The hosts of the two
shows have regularly engaged in verbal sparring on air, hurling accusations
and counter-accusations with respect to their opposing religious beliefs and
practices.
It appears that in his program Ang Tamang Daan, Michael M. Sandoval
(Michael) of the Iglesia ni Cristo attacked petitioner Soriano of the Ang
Dating Daan for alleged inconsistencies in his Bible teachings. Michael
compared spliced recordings of Soriano's statements, matched with
subtitles of his utterances, to demonstrate those inconsistencies. On
August 10, 2004, in an apparent reaction to what he perceived as a
malicious attack against him by the rival television program, Soriano
accused Michael of prostituting himself with his fabricated presentations.
Thus:
". . . . gago ka talaga Michael. Masahol ka pa sa putang babae. O di ba?
Yung putang babae ang gumagana lang doon yung ibaba, kay Michael ang
gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng
lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng
demonyong ito. . ."
Michael and seven other ministers of the Iglesia ni Cristo lodged a
complaint against petitioner Soriano before the MTRCB. Acting swiftly, the
latter preventively suspended the airing of Soriano's Ang Dating Daan
television program for 20 days, pursuant to its powers under Section 3 (d)
of Presidential Decree 1986 1 and its related rules.
Petitioner Soriano challenged the validity of that preventive suspension
before this Court in G.R. 164785. Meanwhile, after hearing the main case or
on September 27, 2004, the MTRCB found Soriano guilty as charged and
imposed on him a penalty of three months suspension from appearing on
the Ang Dating Daan program. Soriano thus filed a second petition in G.R.
165636 to question that decision. The Court consolidated the two cases.
DHIaTS
On April 29, 2009 the Court rendered a decision, upholding MTRCB's power
to impose preventive suspension and affirming its decision against
petitioner Soriano with the modification of applying the three-month
suspension to the program And Dating Daan, rather than to Soriano.
Issue Presented
This dissenting opinion presents a narrow issue: whether or not the Court is
justified in imposing the penalty of three-month suspension on the
television program Ang Dating Daan on the ground of host petitioner
Soriano's remarks about Iglesia ni Cristo's Michael prostituting himself
when he attacked Soriano in the Iglesia's own television program.
The Dissent
The Ang Dating Daan is a nationwide television ministry of a church
organization officially known as "Members of the Church of God
International" headed by petitioner Soriano. It is a vast religious movement
not so far from those of Mike Velarde's El Shadai, Eddie Villanueva's Jesus is
Lord, and Apollo Quiboloy's The Kingdom of Jesus Christ. These movements
have generated such tremendous following that they have been able to
9
sustain daily television and radio programs that reach out to their members
and followers all over the country. Some of their programs are broadcast
abroad. Ang Dating Daan is aired in the United States and Canada.
The Catholic Church is of course the largest religious organization in the
Philippines. If its members get their spiritual nourishments from attending
masses or novenas in their local churches, those of petitioner Soriano's
church tune in every night to listen to his televised Bible teachings and how
these teachings apply to their lives. They hardly have places of worship like
the Catholic Church or the mainstream protestant movements.
Thus, suspending the Ang Dating Daan television program is the equivalent
of closing down their churches to its followers. Their inability to tune in on
their Bible teaching program in the evening is for them like going to church
on Sunday morning, only to find its doors and windows heavily barred.
Inside, the halls are empty.
Do they deserve this? No.
1. A tiny moment of lost temper.
Petitioner Soriano's Bible ministry has been on television continuously for
27 years since 1983 with no prior record of use of foul language. For a 15-
second outburst of its head at his bitterest critics, it seems not fair for the
Court to close down this Bible ministry to its large followers altogether for a
full quarter of a year. It is like cutting the leg to cure a smelly foot.
2. Not obscene. cHATSI
Primarily, it is obscenity on television that the constitutional guarantee of
freedom of speech does not protect. As the Court's decision points out, the
test of obscenity is whether the average person, applying contemporary
standards, would find the speech, taken as a whole, appeals to the prurient
interest. A thing is prurient when it arouses lascivious thoughts or desires 2
or tends to arouse sexual desire. 3
A quarter-of-a-year suspension would probably be justified when a general
patronage program intentionally sneaks in snippets of lewd, prurient
materials to attract an audience to the program. This has not been the case
here.
3. Merely borders on indecent.
Actually, the Court concedes that petitioner Soriano's short outburst was
not in the category of the obscene. It was just "indecent." But were his
words and their meaning utterly indecent? In a scale of 10, did he use the
grossest language? He did not.
First, Soriano actually exercised some restraints in the sense that he did not
use the vernacular word for the female sexual organ when referring to it,
which word even the published opinions of the Court avoided despite its
adult readers. He referred to it as "yung ibaba" or down below. And, instead
of using the patently offensive vernacular equivalent of the word "fuck" that
describes the sexual act in which the prostitute engages herself, he instead
used the word "gumagana lang doon yung ibaba" or what functions is only
down below. At most, his utterance merely bordered on the indecent.
DHCSTa
Second, the word "puta" or "prostitute" describes a bad trade but it is not a
bad word. The world needs a word to describe it. "Evil" is bad but the word
"evil" is not; the use of the words "puta" or "evil" helps people understand
the values that compete in this world. A policy that places these ordinary
descriptive words beyond the hearing of children is unrealistic and is based
on groundless fear. Surely no member of the Court will recall that when yet
a child his or her hearing the word "puta" for the first time left him or her
wounded for life.
Third, Soriano did not tell his viewers that being a prostitute was good. He
did not praise prostitutes as to make them attractive models to his
listeners. Indeed, he condemned Michael for acting like a prostitute in
attacking him on the air. The trouble is that the Court, like the MTRCB read
his few lines in isolation. Actually, from the larger picture, Soriano appears
to have been provoked by Michael's resort to splicing his speeches and
making it appear that he had taught inconsistent and false doctrines to his
listeners. If Michael's sin were true, Soriano was simply defending himself
with justified anger.
And fourth, the Court appears to have given a literal meaning to what
Soriano said.
"Gago ka talaga . . ., masahol ka pa sa putang babae . . . . Yung putang
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba!"
This was a figure of speech. Michael was a man, so he could not literally be
a female prostitute. Its real meaning is that Michael was acting like a
prostitute in mouthing the ideas of anyone who cared to pay him for such
service. It had no indecent meaning. The Bible itself uses the word
"prostitute" as a figure of speech. "By their deeds they prostituted
themselves," said Psalm 106:39 of the Israelites who continued to worship
idols after God had taken them out of Egyptian slavery. 4 Soriano's real
message is that Michael prostituted himself by his calumny against him.
10
If at all, petitioner Soriano's breach of the rule of decency is slight, one on a
scale of 10. Still, the Court would deprive the Ang Dating Daan followers of
their nightly bible teachings for a quarter of a year because their head
teacher had used figures of speech to make his message vivid.
4. The average child as listener
The Court claims that, since Ang Dating Daan carried a general patronage
rating, Soriano's speech no doubt caused harm to the children who watched
the show. This statement is much too sweeping.
The Court relies on the United States case of Federal Communications
Commission (FCC) v. Pacifica Foundation, 5 a 1978 landmark case. Here are
snatches of the challenged monologue that was aired on radio: cHAIES
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 maybe, even bring us, God help us, peace without
honor and bourbon. . . Also cocksucker is a compound word and neither half
of that is really dirty . . . And the cock crowed three times, the cock three
times. It's in the Bible, cock in the Bible . . . Hot shit, holy shit, tough shit,
eat shit, shit-eating grin . . . It's a great word, fuck, nice word, easy word,
cute word, kind of. Easy word to say. One syllable, short u. Fuck . . . A little
something for everyone. Fuck. Good word. . . .
Imagine how the above would sound if translated into any of the Filipino
vernaculars. The U.S. Supreme Court held that the above is not protected
speech and that the FCC could regulate its airing on radio. The U.S.
Supreme Court was of course correct.
Here, however, there is no question that Soriano attacked Michael, using
figure of speech, at past 10:00 in the evening, not at 2:00 in the afternoon.
The average Filipino child would have been long in bed by the time Ang
Dating Daan appeared on the television screen. What is more, Bible
teaching and interpretation is not the stuff of kids. It is not likely that they
would give up programs of interest to them just to listen to Soriano drawing
a distinction between "faith" and "work or action." The Court has stretched
the "child" angle beyond realistic proportions. The MTRCB probably gave
the program a general patronage rating simply because Ang Dating Daan
had never before been involved in any questionable broadcast in the
previous 27 years that it had been on the air.
The monologue in the FCC case that was broadcast at 2 in the afternoon
was pure indecent and gross language, uttered for its own sake with no
social value at all. It cannot compare to Soriano's speech where the
indecent words were slight and spoken as mere figure of speech to defend
himself from what he perceived as malicious criticism.
5. Disproportionate penalty
The Court applied the balancing of interest test in justifying the imposition
of the penalty of suspension against Ang Dating Daan. Under this test,
when particular conduct is regulated in the interest of public order and the
regulation results in an indirect, conditional, partial abridgment of speech,
the duty of the courts is to determine which of the two conflicting interests
demands the greater protection under the particular circumstances
presented.
An example of this is where an ordinance prohibits the making of loud
noises from 9:00 p.m. to 6:00 a.m. Can this ordinance be applied to prevent
vehicles circling the neighborhood at such hours of night, playing campaign
jingles on their loudspeakers to win votes for candidates in the election?
Here, there is a tension between the rights of candidates to address their
constituents and the interest of the people in healthy undisturbed sleep.
The Court would probably uphold the ordinance since public interest
demands a quiet night's rest for all and since the restraint on the freedom
of speech is indirect, conditional, and partial. The candidate is free to make
his broadcast during daytime when people are normally awake and can
appreciate what he is saying. TASCEc
But here, the abridgment of speech three months total suspension of the
Ang Dating Daan television bible teaching program cannot be regarded
as indirect, conditional, or partial. It is a direct, unconditional, and total
abridgment of the freedom of speech, to which a religious organization is
entitled, for a whole quarter of a year.
In the American case of FCC, a parent complained. He was riding with his
son in the car at 2:00 in the afternoon and they heard the grossly indecent
11
monologue on radio. Here, no parent has in fact come forward with a
complaint that his child had heard petitioner Soriano's speech and was
harmed by it. The Court cannot pretend that this is a case of angry or
agitated parents against Ang Dating Daan. The complaint here came from
Iglesia ni Cristo preachers and members who deeply loathed Soriano and
his church. The Court's decision will not be a victory for the children but for
the Iglesia ni Cristo, finally enabling it to silence an abhorred competing
religious belief and its practices.
What is more, since this case is about protecting children, the more
appropriate penalty, if Soriano's speech during the program mentioned was
indecent and had offended them, is to raise his program's restriction
classification. The MTRCB classify programs to protect vulnerable
audiences. It can change the present G or General Patronage classification
of Ang Dating Daan to PG or "with Parental Guidance only" for three
months. This can come with a warning that should the program commit the
same violation, the MTRCB can make the new classification permanent or, if
the violation is recurring, cancel its program's permit. caSDCA
This has precedent. In Gonzales v. Katigbak, 6 the Court did not ban the
motion picture just because there were suggestive scenes in it that were
not fit for children. It simply classified the picture as for adults only. By
doing this, the Court would not be cutting the leg to cure a smelly foot.
I vote to partially grant the motion for reconsideration by modifying the
three-month suspension penalty imposed on the program Ang Dating Daan.
In its place, I vote to raise the program's restriction classification from G or
General Patronage to PG or with Parental Guidance for three months with
warning that should petitioner Soriano commit the same violation, the
classification of his program will be permanently changed or, if the violation
is persistent, the program will be altogether cancelled.
||| (Soriano v. Laguardia, G.R. No. 164785, 165636, [March 15, 2010], 629
PHIL 262-304)