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

1
 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.—Freedom of expression,
In Re: Emil Jurado the right of speech and of the press is, to be sure, among the most
A.M. No. 93-2-037 SC | April 6, 1995 | 243 SCRA 299 zealously protected rights in the Constitution. But every person
exercising it is, as the Civil Code stresses, obliged “to act with justice,
TOPIC: Libel; Freedom of Speech give everyone his due, and observe honesty and good faith.” The
constitutional right of freedom of expression may not be availed of to
SUMMARY: 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
DOCTRINE: name or reputation or bring them into disrepute—this would not be
“to act with justice” or “give everyone his due.”
FACTS:
_______________
ISSUE:
* EN BANC.
RULING:
300
300 SUPREME COURT REPORTS ANNOTATED
RATIO:
In Re: Emil P. 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.—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
A.M. No. 93-2-037 SC. April 6, 1995.* 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-

2
respect as a human being in society, from becoming judges, with
obviously grievous 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; 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 care 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 anybona 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.
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In Re: Emil P. Jurado
Same; Same; Same; Same; Failure to “present the other side” is
reprehensible, being what in law amounts to a denial of due
process.—If relying on second-hand sources of information is, as the
Journalists’ Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to “present the
other side” is equally reprehensible, being what in law amounts to a
denial of due process.
Same; Same; Same; Same; Journalist’s Code of Ethics; Jurado 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.—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.
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. 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 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
301 such host have resulted in an improper suppression of those facts
and a gross distortion of the truth about them.
Remedial Law; Contempt; 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
3
302
302 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. 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,—that there is no contempt if there is no pending case—has
been abandoned in subsequent rulings of this Court.
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.—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.
Same; Same; Same; R.A. No. 53, Right of Refusal to Disclose
Sources; The right of 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 to prove; for R.A.
53, as amended, is quite unequivocal that the right of refusal to
disclose sources is “without prejudice to **
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In Re: Emil P. 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.—RA No. 53 thus confers no immunity
from prosecution for libel or for other sanction under the 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.—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 as a false idea,” and that “(h)owever pernicious an opinion
4
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 strive 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 commit-
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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
5
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; 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.—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
6
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 confi-
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VOL. 243, APRIL 6, 1995
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
307 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.
7
ADMINISTRATIVE MATTER in the Supreme Court. Contempt.
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.
. 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:
. 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;
. 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
309
VOL. 243, APRIL 6, 1995 309
In Re: Emil P. Jurado
. 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
. 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.
. 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
adjunct 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
8
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. He 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 published statements
from late 1992 to the middle of February, 1993.
. 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.”
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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
9
 . 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.”
. 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.
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312 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
. 4.In his November 9, 1992 column, he wrote about
“a former appellate justice (who) ‘holds office’ at a restaurant
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.”
. 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:
. 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);
. 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
. c)the lady secretary of an RTC Judge in Makati who
allegedly makes sure, for a fee of P10,000.00 or more,
10
 depending on how much money is at stake, that a case is
raffled off to a Judge who will be “extremely sympathetic,”
_______________
5 SEE footnote 10, infra.
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In Re: Emil P. Jurado
. 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);
. 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 fact that
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).
. 3.Events Directly Giving Rise to the Proceeding at
313 Bar
What may be called the seed of the proceeding at bar was sown by
the decision promulgated by this Court on August 27, 1992, in the so-
called “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 major-
314
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.
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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 confutation 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 underscoring 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 column;
. 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 exclusively 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 town.”
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 the 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 theAd
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
. 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
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 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.
TheAd 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.”
. 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:
. 1)that the matter dealt with in the letter and affidavit
of the PLDT herein mentioned be duly DOCKETED, and
hereafter consid-
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VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
. ered and acted upon as an official Court proceeding
for the determination of whether or not the allegations made
by Atty. Emil Jurado herein specified are true;
. 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.
. 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
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
cancel previous professional and business appointments; and the
second invitation, “if it was ever received” by his office, was never
routed to him, and he had yet to see it.11 If the impression had
_______________
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.”
. 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.
. 3.The column about Executive Judge Rosalio de la
Rosa merely summarized the position of Judge Teresita Dy-
Liaco Flores on the actuations of Judge de la Rosa and called
the attention of the Court thereto, 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
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VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
. and Bar Council echo the public perception, and
constitute fair comment on a matter of great public interest
and concern.
. 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.
. 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
321 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
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 **.”
. e.Resolution of March 18, 1993
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 proceed-
323
VOL. 243, APRIL 6, 1995 323
In Re: Emil P. Jurado
ing on the following posited premises:
. 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.
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 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—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 beat 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
_______________
16 SEE footnote 1, page 2, supra.
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,
1993; Media v. Pamaran, 160 SCRA 457 (1988); Office of the Court
Administrator v. Gaticales, 208 SCRA 508 (1992); Vistan v. Nicolas,
327
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
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-
respect as a human being in society, from becoming judges, with
obviously grievous 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.
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 exercisebona fide care
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 therecklessdisregard 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
. 6.Analysis of Jurado Columns
. a.Re “Public Utility Firm”
Now, Jurado’s allegation in his column of February 8, 1993—“that six
justices, their spouses, children and grandchil-
327
_______________
201 SCRA 524 (1991); NISA v. Tablang, 199 SCRA 766 (1991).
17a SEE,e.g., Ayer Productions Pty. Ltd v. Capulong, 160 SCRA
861 (1988).
328
328 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
dren (a total of 36 persons) spent a vacation in Hong Kong some time
last year—andthat luxurious hotel accommodations and all their
other expenses were paid by a public utility firm and that the trip
reportedly was arranged by the travel agency patronized by this
public utility firm,” supra, is—in the context of the facts under which
it was made—easily and quickly preceived as a transparent
accusation that the PLDT had bribed or “rewarded” six (6) justices
for their votes in its favor in the case of “Philippine Long Distance
Telephone Company v. Eastern Telephone Philippines, Inc.
(ETPI),” G.R. No. 94374,18 by not only paying all their expenses—i.e.,
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
_______________
18 SEE footnote 6, supra.
329
VOL. 243, APRIL 6, 1995 329
In Re: Emil P. Jurado
perception of those who talked to me and the other officers of the
PLDT after having read the Jurado column.”
The record shows that he made no effort whatsoever to impugn,
modify, clarify or explain Samson’s positive assertion that:
“ ** (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
possesses not even the saving grace of honest error.
If relying on second-hand sources of information is, as the
Journalists’ Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to
330
330 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
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 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.
. 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 non-
unanimous 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 theponente; 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.
. (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-in-
334
334 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 JudgeRosalio de la Rosa had
never been nominated—indeed, to this date, he has not been
nominated—to the Court of Appeals.
. (d)He has recklessly slandered the Judicial and Bar
Council by charging that it has improperly made
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., JudgeJoselito 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;
. (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
335
VOL. 243, APRIL 6, 1995 335
In Re: Emil P. Jurado
24
. opposition of persons in positions of power or _______________
influence.
. (f)Jurado was similarly unfair, untruthful and 21 Said Sec. 15, par IV, supersedes the provision in Circular No. 7
unfoundedly judgmental in his reporting about Executive that the Executive Judge “shall have no authority to act on any
incidental or interlocutory matter in any case not yet assigned to any
Judge Rosalio de la Rosa of the Manila Regional Trial Court
branch by raffle.”
as:
336
336 SUPREME COURT REPORTS ANNOTATED
. (1)having been nominated to the Court of Appeals by In Re: Emil P. Jurado
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
. and prerogatives as may in his judgment be
necessary or incidental to the performance of his functions
Judge Rosalio de la Rosa had never been thus nominated to
as a Court Administrator” (Sec. 7, par. 1, id.)—these
the Court of Appeals, the nominee having been
provisions being broad enough, not only to authorize
Judge Joselito de la Rosa, the son-in-law (not nephew) of
unilateral action by the Executive Judge himself on
Justice Relova; and
provisional remedies and interlocutory matters even prior to
. (2)having discarded the rule that cases seeking
raffle of the main case, but also to delegate the authority to
provisional remedies should be raffled off to the judges
act thereon to other judges.
(column of January 28, 1993) and adopted a system of
Jurado does not explain why: (1) he made no effort to verify
farming out applications for temporary restraining orders,
the state of the rules on the matter; (2) he precipitately
etc., among all the branches of the court; here again, Jurado
assumed that the views of Judge Teresita Dy-Liaco Flores,
is shown to have written without thinking, and made
whose complaint on the subject he claims he merely
statements without verifying the accuracy of his information
summarized, were necessarily correct and the acts of Judge
or seeking the views of the subject of his pejorative
de la Rosa necessarily wrong or improper; and (3) he did not
statements; the merest inquiry would have revealed to him
try to get Judge de la Rosa’s side at all.
that while Circular No. 7 dated September 23, 1974 requires
that no case may be assigned in multi-sala courts without
Common to all these utterances of Jurado is the failure to undertake
raffle (for purposes of disposition on the merits),
even the most cursory verification of their objective truth; the
Administrative Order No. 6, dated June 30, 1975 (Sec. 15,
abdication of the journalist’s duty to report and interpret the news
Par. IV),21 empowers Executive Judges to act on all with scrupulous fairness; and the breach of the law’s injunction that
applications for provisional remedies (attachments, a person act with justice, give everyone his due and observe honesty
injunctions, or temporary restraining orders, receiverships, and good faith both in the exercise of his rights and in the
etc.), or on interlocutory matters before raffle, in order to performance of his duties.
“balance the workload among courts and judges, (Sec. 1, par.
2, id.), and exercise such other powers . 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
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 litigant’” (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
337 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. 416-
417.) 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 Vice-
President 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.
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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 hosted
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 HocCommittee. 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 reflect,
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.
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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 wasnotJurado’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).
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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 or Subpoena
Ever Issued to Jurado
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 Under RA 53
From Responding to Subpoena
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
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VOL. 243, APRIL 6, 1995 343
In Re: Emil P. Jurado
wouldprima 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.
29
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 prejudice 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,
30
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VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
refusing to specifically identify or render identifiable the persons he
maligns. Thus, he speaks of the “Magnificent Seven,” by merely
referring to undisclosed regional trial court judges in Makati; the
“Magnificent Seven” in the Supreme Court, as some undesignated
justices who supposedly vote as one; the “Dirty Dozen,” as
unidentified trial judges in Makati and three other cities. He adverts
to an anonymous group of justices and judges for whom a bank
allegedly hosted a party; and six unnamed justices of this Court who
reportedly spent a prepaid vacation in Hong Kong with their families.
This resort to generalities and ambiguities is an old and familiar but
reprehensible expedient of newsmongers to avoid criminal sanctions
since the American doctrine of group libel is of restricted application
in this jurisdiction. For want of a definitely identified or satisfactorily
identifiable victim, there is generally no actionable libel, but such a
craven publication inevitably succeeds in putting all the members of
the judiciary thus all together referred to under a cloud of suspicion.
A veteran journalist and lawyer of long standing that he is, Jurado
could not have been unaware of the foregoing realities and
consequences.
. 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;
and if thereafter called to account therefor, present such evidence
345 and in the process afford the party adversely affected thereby
opportunity to dispute the information or show it to be false.
346
346 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
If the information is not verifiable, and it is derogatory of any third
party, then it ought not to be published for obvious reasons. It would
be unfair to the subject of the report, who would be without means of
refuting the imputations against him. And it would afford an
unscrupulous journalist a ready device by which to smear third
parties without the obligation to substantiate his imputations by
merely claiming that the information had been given to him “in
confidence.”
It is suggested that there is another face to the privileged character of
a journalist’s source of information than merely the protection of the
journalist, and that it is intended to protect also the source itself.
What clearly is implied is that journalist may not reveal his source
without the latter’s clearance or consent. This totally overlooks the
fact that the object of a derogatory publication has at least an equal
right to know the source thereof and, if indeed traduced, to the
opportunity of obtaining just satisfaction from the traducer.
. 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
obtain the side of the party adversely affected before he publishes the
same.
True, the pre-eminent role of a free press in keeping freedom alive
and democracy in full bloom cannot be overemphasized. But it is
debatable if that role is well and truly filled by a press let loose to
print what it will, without reasonable restraints designed
347
VOL. 243, APRIL 6, 1995 347
In Re: Emil P. Jurado
to assure the truth and accuracy of what is published. The value of
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
possible for the public to distinguish between truth and falsehood in
news reports, and the courts are denied the mechanisms by which to
make reasonably sure that only the truth reaches print.
. a.No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
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,29 while asserting that “(u)nder the First
Amendment there is no such thing as a false idea,” and that
“(h)owever pernicious an opinion 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).”
_______________
29 In Gertz v. Robert Welch., 418 U.S. 323, 340.
348
348 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
“The use of calculated falsehood,” it was observed in another
case,30 “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.”
Similarly, in a 1969 case concerning a patently false accusation made
against a public employee avowedly in fulfillment of a “legal, moral,
or social duty,”31 this Court, through the late Chief Justice Roberto
Concepcion, ruled that the guaranty of free speech cannot be
considered as according protection to the disclosure of lies, gossip or
rumor, viz.:
“ ** Defendant’s civil duty was to help the Government clean house
and weed out dishonest, unfit or disloyal officers and employees
thereof, where there is reasonable ground to believe that they fall
under this category. He had no legal right, much less duty, to gossip,
or foster the circulation of rumors, or jump at conclusions and more
so if they are gratuitous or groundless. Otherwise, the freedom of
speech, which is guaranteed with a view to strengthening our
democratic institutions and promoting the general welfare, would be
a convenient excuse to engage in the vituperation of individuals, for
32
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.
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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
33
prosecute cases in his behalf as a private individual. The same
reasons of public policy which exempt a judge from civil liability in
the exercise of his judicial functions, most fundamental of which is
the policy to confine his time exclusively to the discharge of his
public duties, applies here with equal, if not superior, force
(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.
194). **.”
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 strive at all times to maintain the prestige
and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct
detailed here, Jurado has maintained a defiant stance. “This is a fight
I will not run from,” he wrote in his column of March 21, 1993; and
again, “I will not run away from a good fight,” in his column of March
23, 1993. Such an attitude discourages leniency, and leaves no choice
save the application of sanctions appropriate to the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado
guilty of contempt of court and in accordance with Section 6, Rule 71
of the Rules of Court, hereby sentences him to pay a fine of one
thousand pesos (P1,000.00).
IT IS SO ORDERED.
Feliciano, Bidin, Regalado, Davide,
Jr., Romero, Bellosillo, Quiason, Mendozaand Francisco, JJ., concur.
Padilla, J., I join Mr. Justice Puno in his dissenting opinion.
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In Re: Emil P. Jurado
Melo, J., Please see dissenting opinion.
Puno, J., Please see dissenting opinion.
Vitug, J., No part; respondent was a former partner in a law firm.
Kapunan, J., I take no part. Respondent is related to me by
affinity.
DISSENTING OPINION
MELO,J.:
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.
To be sure, fair, accurate, truthful reporting by the press is the
hallmark and badge of a healthy and self-assured society. But such
ideal must not be purchased or achieved at the cost of press freedom
itself, but rather by caring for and nurturing, cultivating, and
promoting the growth of said freedom, impressing upon its
practitioners due regard for the truth and the entitlement of the
public they serve to accurate reporting instead of the publication or
airing of private biases and jaundiced views.
It is thus even as I am personally disturbed by fallacious, specious,
and at times downright false and deceitful reporting and comments,
meant only to promote private and selfish interests, I must extend
my concurrence to the well-written opinion of Justice Puno. For, as
was said of old, when one rows through a sea of conflict between
restraint and freedom, one should hold both oars steadily, but always
with the oar of freedom in the stronger hand, lest an errant course be
351 laid.
352
352 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
34
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, “Creating
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
seekto 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)
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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 seventy-
one (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.
TheAd 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.
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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 news-
report 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
36
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 press4 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 provides: “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
358 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” respecting 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 Seven 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
38
_______________
14 McGrain v. Daugherty, 273 US 135, 175 (1927).
15 See Garland v. Torre, supra, footnote 13.
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In Re: Emil P. Jurado
explanation of the respondent was minutely dissected in the majority
opinion, and thereafter, it was condemned as a “litany of falsehoods.”
Indeed, no less than four (4) pages of the majority opinion written in
single space were devoted to the discussion of these writings of the
respondent.
Neither does it materially matter that no summons or subpoena was
issued to the respondent by the Ad Hoc Committee. According to the
majority, only an “invitation” to appear was extended to the
respondent. This thin semantical distinction, however, cannot deflate
the fact that an “invitation” from a Committee of this Court carries as
much compulsion as a summons or a subpoena. The February 5,
1993 letter of the Chairman of the Ad HocCommittee to the
respondent tells it all when it stated that said Committee has “...
authority to maintain and enforce order in its proceedings, and to
compel obedience to its processes.”
Second. The letters of invitation to respondent misappreciated the
proper function of the press. The first letter, dated February 1, 1993,
ordered respondent “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.” The second letter, dated February 5, 1993, stated, inter
alia, “... we believe you will want to help the Court x x x 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.” I submit that the press is not an adjunct of the judiciary,
any more than is it an annexof the two (2) other branches of
government. As the press is not an extension of the judiciary, it
cannot be used as an investigatory instrument to purge courts of
misfits, especially when the use of the press will compel it to
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
involvement of the press.
Third. The protection of R.A. No. 53, as amended by R.A. No. 1477, to
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
newsman to reveal the source of his confidential
360
360 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
information—when demanded by the security of the State. It is
instructive to remember the case of In re: Angel J. Parazo,16 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
rejectedParazo’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.”
Respondent invoked R.A. No. 53, as amended, as an additional
defense in his favor. The majority opinion, however, shunted aside
respondent’s submission as it held that said law does not protect “a
journalist who deliberately prints lies or distorts the truth.” There is
no disagreement that R.A. No. 53, as amended, does not provide
immunity against a blatant falsehood just as the Constitution does
not protect a vicious lie. Precisely, section 1 of the law starts with the
categorical caveat “without prejudice to his liability under the civil
and criminal laws, the publisher, editor, columnist ... cannot be
39
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.
_______________
16 82 Phil. Reports 230 [1948].
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VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
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 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.
Fourth.The majority stubbornly stresses that it gave respondent an
“option” and did not compel him to reveal the sources of his
information. Indeed, he was not compelled but he paid a high price
for not revealing the sources of his information. It was held that he
failed to disprove the falsity and slant of his column, hence, was
liable for contempt.
My thesis is that the affidavits on the PLDT affair and Atty. Veto’s
party may have proved the falsity or slant of respondent’s columns.
But mere proof of falsity or slant is not proof that the falsehood or
slant was made knowingly or with reckless disregard of truth to use
the New York Times test. Likewise, proof that respondent did not
verify his facts from the PLDT and travel agency officials and from
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 speechon condition of
anonymity. In Talley v. California,17 an
361
_______________
17 362 US 60 (1960).
362
362 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
ordinance which penalized the distribution of any handbill which did
not identify its author was struck down as unconstitutional. It was
held that “identification and fear of reprisal might deter perfectly
peaceful discussions of public matters of importance.”18 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 independentright 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
impairment of the flow of information to the public will suffer an
irreparable harm.
40
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 to 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
_______________
18 Ibid at p. 65.
19 80 Phil. 71.
20 31 SCRA 731 [1970].
21 125 SCRA 553 [1983].
22 126 SCRA 233 [1983].
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In Re: Emil P. Jurado
In the case at bench, I cannot perceive how the respondent’s column
on the alleged Hongkong trip of some justices could have brought
about the substantive evil of subverting our orderly administration of
justice. The affidavits of Mr. Samson, First Vice President of PLDT, of
Mr. Ermin Garcia, Jr., President of CitiWorld Travel Mart
Corporation, and of Mrs. Marissa de la Paz, General Manager of
Philway Travel Corporation merely established the falsity of
respondent’s report. There is nothing in the record, however,
showing the degree how respondent’s false report degraded the
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
fear. There is less reason to punish respondent for contempt for his
report on Atty. Veto’s party. Unlike respondent’s report about the
justices’ Hongkong trip, his report on Atty. Veto’s party is not false
but only slanted, to use the own description of the majority opinion.
Also, unlike respondent’s report about the justices’ Hongkong trip
363 which was made while the Court has yet to resolve Eastern
Telephone’s Motion for Reconsideration in G.R. No. 94374, his
report on Atty. Veto’s party does not concern any pending litigation
in this Court.
364
364 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
Given these material differences, there is no way to conclude that
respondent’s report on Atty. Veto’s party degraded our
administration of justice. In citing respondent in contempt
for slanting his report on Atty. Veto’s party, the majority betrays its
41
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.
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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 of 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 fora 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.
42
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 caused.” 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 allof 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 agent29of 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
43
abridgment of the publicity afforded by a free press cannot be dissemination of matters of public interest. (Ayer Productions Pty.
regarded otherwise than with grave concern.”30As agent of the Ltd. vs. Capulong, 160 SCRA 861 [1988])
people, the most important function of the press in a free society is to No clear and present danger of any violation of any right to privacy
inform and it cannot 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.
28 4 Elliot’s Debates on the Federal Constitution 571 [1876] as cited Sandiganbayan, 170 SCRA 1 [1989])
in 48 Fordham Law Review 694, 701 [1980]. Punishment for contempt of court is a remedial, preservative or
29 See dissenting opinion of Justice Powell in Saxbe v. Washington coercive act rather than a vindictive or punitive one. (Facinal vs.
Post Co., 417 US 843, 863 [1974]. Cruz, 213 SCRA 238 [1992])
30 Grosjean v. American Press Co., 297 US 233, 250 [1936]. The freedom of speech and of the press, or of expression, which the
368 Bill of Rights guarantees, is not an absolute right. (National Press
368 SUPREME COURT REPORTS ANNOTATED Club vs. Commission on Elections, 207 SCRA 1 [1992])
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

44

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
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
_______________
* 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
45
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
46
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 Offices for private
respondent.
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
47
_______________
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
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
Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38
mahihirap na pamilya sa Tondo Foreshore Area na umano’y
inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority
sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo
ng barangay 66, Zone 6, Tondo Foreshore Area, sa mga project
manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga)
pamilyang apektado, na umaabot lang sa 487.87 metro kuwadrado
ang kabuuan ng mga lupa na kinatitirikan ng mga barung-barung ng
38 pamilya.
“Naninirahan na kami sa mga lupang nabanggit sapul 1950 at
pinatunayan sa mga survey ng NHA noong nakalipas na taon na may
karapatan kami sa mga lupang ito ng pamahalaan,” ani Vasquez.
“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.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city
hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng
pulisya ang barangay chairman kaya “nakalusot” ang mga ginawa
nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din
umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at
maging sa mga nakawan ng manok.
“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
465 against petitioner alleging that the latter’s state-
_______________
2 Exh. A-1, Records, p. 77.
466
466 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
ments cast aspersions on him and damaged his reputation. After
conducting preliminary investigation, the city prosecutor filed the
following information in the Regional Trial Court of Manila, Branch
40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of
libel committed as follows:
That on or about April 22, 1986, in the city of Manila, Philippines,
the said accused, with malicious intent of impeaching the reputation
and character of one Jaime Olmedo, chairman of Barangay 66, Zone
6 in Tondo, Manila, and with evident intent of exposing him to public
hatred, contempt, ridicule, did then and there willfully, unlawfully,
feloniously and maliciously caused the publication of an article
entitled “38 Pamilya Inagawan ng Lupa” in Ang Tinig ng Masa, a
daily newspaper sold to the public and of general circulation in the
Philippines in its April 22, 1986 issue, which portion of the said
article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38
mahihirap na pamilya sa Tondo Foreshore Area na umano’y
inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority
sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo
ng barangay 66, Zone 6, Tondo Foreshore Area sa mga project
48
manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
x x x “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.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city
hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng
pulisya ang barangay chairman kaya “nakalusot” ang mga ginawa
nitong katiwalian. Bukod sa pagkamkam ng mga lupaing gobyerno,
kasangkot din umano si Olmedo sa mga ilegal na pasugalan sa
naturang lugar at maging sa mga nakawan ng manok. x x x
with which statements, the said accused meant and intended to
convey, as in fact he did mean and convey false and malicious
imputations that said Jaime Olmedo is engaged in landgrabbing and
467
VOL. 314, SEPTEMBER 15, 1999
Vasquez vs. Court of Appeals
involved in illegal gambling and stealing of chickens at the Tondo
Foreshore Area, Tondo, Manila, which statements, as he well knew,
were entirely false and malicious, offensive and derogatory to the
good name, character and reputation of said Jaime Olmedo, thereby
tending to impeach, besmirch and destroy the honor, character and
reputation of Jaime Olmedo, as in fact, the latter was exposed to
dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty,
whereupon the case was tried. The prosecution presented Barangay
Chairman Olmedo and his neighbor, Florentina Calayag, as witnesses.
On the other hand, the defense presented Ciriaco Cabuhat, Nicasio
Agustin, Estrelita Felix, Fernando Rodriguez—all residents of the
Tondo Foreshore Area—and petitioner as its witnesses.
On May 28, 1992, the trial court rendered judgment finding
petitioner guilty of libel and sentencing him to pay a fine of
P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence,
this petition for review. Petitioner contends that—
. I.THE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE TRIAL COURT
PINPOINTING PETITIONER AS THE SOURCE OF THE
ALLEGED LIBELOUS ARTICLE.
. II.THE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE TRIAL COURT
THAT PETITIONER IMPUTED THE QUESTIONED ACTS
TO COMPLAINANT.
. III.THE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE TRIAL COURT
THAT THE ALLEGED IMPUTATIONS WERE MADE
MALICIOUSLY.
. IV.THE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE TRIAL COURT
467
WHICH FAILED TO APPRECIATE PETITIONER’S
DEFENSE OF TRUTH.
. V.THE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE TRIAL COURT
THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
468
468 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
We will deal with these contentions in the order in which they are
made.
First. 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.3 The reference is to the following portion of the
decision of the Court of Appeals:
. . . In his sworn statement, appellant admitted he was the source of
the libelous article (Exh. “B”). He affirmed this fact when he testified
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);
49
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. 8-
9, id.); that the only inaccurate account in the published article of 6 TSN, pp. 3-4, Nov. 15, 1989.
“Ang Tinig ng Masa” is the reference to the 487.87 sq. m. lot, on ATTY. VIRGILIO Mr. Vasquez, you are charged with having [made] a
which Olmedo’s residence now stands, attributed by the reporter as OCAYA— statement that was reflected in the Pahayagang [Ang]
the lot currently occupied by appellants and his fellow complainants Masa. Where was this alleged statement taken?
(pp. 4-5, tsn, Nov. 15, 1989; pp. 4-5, tsn, January 15, 1990); and that A— What I remember, sir, the reporter got the statement
after the interview, he never expected that his statement would be from the National Housing Authority, and we were
the cause of the much-publicized libelous article (pp. 4-6, tsn, Nov. many at that time that were being interviewed by the
15, 1989).4 reporters, sir.
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
Q— Is that [report] reflected in the Pahayagang [Ang] Masa
statement5 was that the contents of the article are true in almost all
an accurate report in all aspects?
respects, thus:
9. Tama ang nakalathala sa pahayagang “Ang Masa” maliban na lang A— There are some which are correct and some which are
sa tinutukoy na ako at ang mga kasamahang maralitang taga-lungsod wrong, sir.
ay nakatira sa humigit kumulang 487.87 square meters sapagkat ang Q— Which are those which are not correct?
nabanggit na 487.87 square meters ay siyang kinatitirikan ng bahay A— Regarding the statement that I was one of those whose
ni Barangay Chairman Olmedo kung saan nakaloob ang anim na residence and lot area is around more than 400 sq.
lote—isang paglabag sa batas o regulasyon ng NHA; 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 publication “Ang Masa” was not
3 Petition, pp. 9-12; Rollo, pp. 17-20. correct which pertains to 487.87 square meters.
4 CA Decision, p. 4; Id., p. 47. However, you were able to make that conclusion when
5 Exh. B; Records, p. 79. (Emphasis added) you were able to read that part of the publication, “Ang
469 Masa.”
VOL. 314, SEPTEMBER 15, 1999 469 A— No, sir, I told you, sir, that the contents of my sworn
Vasquez vs. Court of Appeals statement is correct. But some portion of the newspaper
10. Ang ginawa kong pahayag na nailathala sa “Ang Masa” ay sanhi “Ang Masa” particularly the portion regarding the
487.87 square meters wherein me and my companions
ng aking nais na maging mabuting mamamayan at upang maituwid
were living, that is not correct because the lot was
ang mga katiwaliang nagaganap sa Tondo Foreshore Area kung saan
occupied by the barangay chairman Olmedo and the lot
ako at sampu ng aking mga kasamang maralitang tagalungsod ay
apektado at naaapi. was owned by the government.
This was likewise what he stated in his testimony in court both on 470
direct6 and on cross-examination.7 However, by 470 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals

50
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
_______________
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 471
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 object 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:
_______________
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).
51
472
472 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
. 1.A private communication made by any person to
another in the performance of any legal, moral or security
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
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 comes 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-
52
_______________ awarded before by the defunct Land Tenure Administration to
different persons as follows:
18 TSN, pp. 3-4, Nov. 15, 1989. Lot 4 — Juana Buenaventura - 79.76 sq. m.
19 Art. 361 provides: Lot 6 — Servando Simbulan - 48.50 sq. m.
Proof of the truth.—In every criminal prosecution for libel, the truth Lot 7 — Alfredo Vasquez - 78.07 sq. m.
may be given in evidence to the court and if it appears that the matter Lot 8 — Martin Gallardo - 78.13 sq. m.
charged as libelous is true, and, moreover, that it was published with Lot 9 — Daniel Bayan - 70.87 sq. m.
good motives and for justifiable ends, the defendants shall be
Lot 1 — Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)
acquitted.
The above-mentioned lots were not yet titled, except for Lot 1.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation Fortunato de Jesus sold the said lot to a certain Jovita Bercasi, a
shall have been made against Government employees with respect to sister-in-law of Jaime Olmedo. The other remaining lots were either
sold to Mr. Olmedo and/or to his immediate relatives.
facts related to the discharge of their official duties.
Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of
In such cases if the defendant proves the truth of the imputation
Jaime Olmedo, with an area of 47.40 sq. m. The lot assigned to
made by him, he shall be acquitted.
20 Exh. 12; Records, pp. 238-239. Chairman Olmedo has a total area of 487.87 sq. m.
474
474 SUPREME COURT REPORTS ANNOTATED . 2.Block 261, SB 8, Area III
Vasquez vs. Court of Appeals
spector General Hermogenes Fernandez to petitioner’s counsel Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of
which reads: 151.67 sq. m. A four-door apartment owned by Mr. Olmedo is being
09 August 1983 rented to uncensused residents.
Atty. Rene V. Sarmiento 475
Free Legal Assistance Group (FLAG) VOL. 314, SEPTEMBER 15, 1999 475
55 Third Street Vasquez vs. Court of Appeals
New Manila, Quezon City 3. Block 262, SB 8, Area III
Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo,
Dear Atty. Sarmiento: but this lot is not yet titled.
4. Block 256, SB 5, Area III
In connection with your request that you be furnished with a copy of Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her
the results of the investigation regarding the complaints of some structure is erected on a non-titled lot. The adjacent lot is titled in the
Tondo residents against Chairman Jaime Olmedo, we are providing name of Victoria. It was issued OCT No. 10217 with an area of 202.23
you a summary of the findings based on the investigation conducted sq. m. Inside this compound is another structure owned and
by our Office which are as follows: occupied by Amelia Dofredo, a censused houseowner. The titled lot
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime of Victoria now has an area of 338.20 sq. m.
Olmedo’s present structure is constructed on six lots which were For your information.

53
 (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 for 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.
54
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 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.”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 his
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
55
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])

56

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 communications had its genesis not in the nation’s penal code but in
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
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 the 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
57
 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 self-
determination 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
3 eschews the strictly libertarian view that it is protective solely of self-
expression 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.—
58
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 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. 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 is in the event; the public focus is on the conduct of the participant
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 character,
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
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,” Explained.—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.
59
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 powerful instrument of injustice.—We must however take this
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
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 disre-
8
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
60
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 9
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
robust 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
61
the right of free expression bestirs and presents itself time and again,
in cyclic occurrence, to inveigle, nay, challenge the courts to re-
survey its ever shifting terrain, explore and furrow its heretofore
uncharted moors and val-
10
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 11
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 Sub-
Committee 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
62
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 13
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
63
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 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.
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
22 June 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.
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
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 well-
meaning 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
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.
3 July 1989
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
64
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 14, 1999
Borjal vs. 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 policy-makers?
Private respondent reacted to the articles. He sent a letter to The
Philippine Starinsisting that he was the “organizer” alluded to in
petitioner Borjal’s columns.4 In a subsequent letter to The Philippine
Star, private respondent refuted the matters contained in petitioner
Borjal’s columns and openly challenged him in this 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 of using his column as a form of leverage to
obtain contracts for his public relations firm, AA Borjal
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
________________
4 Published in the 4 June 1989 issue of The Philippine Star; see Exh.
“R.”
5 TSN, 18 May 1992, p. 43; Exh. “1.”
15 6 Id., pp. 60-64; Exh. “21.”
7 Exh. “16.”
16
16 SUPREME COURT REPORTS ANNOTATED
Borjal vs. 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 of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners
a civil action for damages based on libel subject of the instant
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
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 by describing him variously as a “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 communication
was unavailing since the privileged character of the articles was lost
65
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 calling
the attention of the gov-
________________
8 Docketed as Civil Case No. Q-90-7058, raffled to RTC-Br. 98,
Quezon City.
17
VOL. 301, JANUARY 14, 1999
Borjal vs. 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 crossed the thin 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 for Extension of
Time to File Petition and a Motion for Suspension of Time to File
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
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 facie evidence which is significantly less than the pre-
_______________
17 9 Wenceslao v. Court of Appeals, G.R. No. 124396.
18
18 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
ponderance of evidence required in civil cases; (c) in ruling that the
subject articles do not constitute qualifiedly privileged
communication; (d) in refusing to apply the “public official doctrine”
laid down in New York Times v. 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 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 Regrettably, these requisites
have not been complied with in the case at bar.
66
In ruling for private respondent, the Court of Appeals found that
Borjal’s column writings sufficiently identified 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
_______________
10 Kunkle v. Cablenews-American, 42 Phil. 757 (1922). See
also Corpus v. Cuaderno, Sr., No. L-16969, 30 April 1966, 16 SCRA
807; People v. Monton, No. L-16772, 30 November 1962, 6 SCRA 801.
19
VOL. 301, JANUARY 14, 1999
Borjal vs. 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 which appeared in the
31 May 1989 issue of The Philippine 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-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 supplied).11 Neither did the
FNCLT 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 The
printout14 and tentative program15of the conference were devoid of
any indication of Wenceslao as organizer. The printout which
contained an article entitled “Who Organized the NCLT?” did not
even mention private respondent’s name, while the 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 severalorganizers and that he was only a part of the organization,
thus—
I would like to clarify for the record that I was only a part of the
organization. I was invited then because I was the head of the
_________________
11 Exh. “B.”
12 Exh. “8”; Annexes “3” and “5.”
13 Exh. “SSS-1.”
19 14 Annex “C,” Complaint.
15 Annex “B,” id.
20
20 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
technical panel of the House of Representatives Sub-Committee on
Industrial Policy that took care of congressional hearings.16
Significantly, private respondent himself entertained doubt that he
was the person spoken of in Borjal’s columns. The former even called
up columnist Borjal to inquire if he (Wenceslao) was the one referred
to in the subject articles.17 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 was almost 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
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
67
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 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.
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., 18 May 1992, p. 20.
18 Annex “R.”
21
VOL. 301, JANUARY 14, 1999
Borjal vs. 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 state—
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:
1) A private communication made by any person to another in the
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 in the exercise of their 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” 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 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
21 Borjal vs. Court of Appeals
Code for, as correctly observed by the appellate court, they are
neither private 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.19 As
early as 1918, in United States v. Cañete,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.
68
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
________________
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 self-
expression 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
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—
_________________
23 Author of “The Irony of Free Speech,” Harvard University Press,
Cambridge, Massachusetts, 1996.
23 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
69
 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 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. 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.
________________
25 TSN, 29 July 1991, p. 15.
26 Id., 9 September 1991, pp. 11-12.
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VOL. 301, JANUARY 14, 1999 25
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 Sullivan 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 self-
censorship, 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
_________________
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
70
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,
________________
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
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
_________________
27 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
71
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
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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.”
72
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 31
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 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
73
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
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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 its 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])
74
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])

75

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
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Vicario vs. Court of Appeals
witness. According to the Information, the crime was committed
when Vicario allegedly distributed and circulated in the vicinity of
76
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 libelous 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
28 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 affidavit-
complaint 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,
______________
77
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
78
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 wit-
32
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
79
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
________________
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
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
_______________
12 Aquino, Ramon C., The Revised Penal Code, Vol. III, Bk. II, 1997
Ed., citing People v. de los Reyes, Jr., 47 OG 3569.
33 13 The “equipoise doctrine” is the rule which states that when the
evidence of the prosecution and the defense are so evenly bal-
34
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 re-
utterance. We recognize that a person’s liability for libel does 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.
80
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 35
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.

81

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
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
______________
* FIRST DIVISION.
118
118 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.
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, Bataan2affirming 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.
_______________
82
1 In CA-G.R. CR No. 21710, promulgated on May 3, 1999, “After considering the evidence adduced by the parties together
Justice Romeo A. Brawner, ponente, and concurred in by with their respective memorandum, this Court finds no re-
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. 4 Rollo, p. 23.
119 5 Rollo, pp. 23-25.
VOL. 325, FEBRUARY 8, 2000 119 6 The imposition of an indeterminate sentence 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
guilty.”4 623 (1981) and People vs. Arellano, 68 Phil. 678 (1939); See
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 error8 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
affirmed the Regional Trial Court’s decision but with modification as to the penalty imposed,
On appeal, on March 4, 1998, the Regional Trial Court affirmed the decision of the Municipal as follows:
Trial Court in toto. The decretal portion of the decision reads: “WHEREFORE, in view of the foregoing, the judgment
appealed from is hereby affirmed but with the modification that

83
the accused-appellant, Rogelio Pader is sentenced to serve a 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
prison term of four (4) months and one (1) day of arresto or displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of
mayor. 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.
“SO ORDERED. Obviously, the intention was to show his feelings of resentment and not necessarily to insult
“ROMEO A. BRAWNER the latter. Being a candidate running for vice mayor, occasional gestures and words of
disapproval or dislike of his person are not uncommon.
“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,
8 Regrettably, Regional Trial Court Judge Vianzon failed to pp. 357-358.
note the error in the imposition of an indeterminate penalty and 13 Municipal Trial Court Decision in Criminal Case No. 2339,
the award of moral damages, not knowing any better. Both Rollo, pp. 23-25; Regional Trial Court Decision in Criminal
judges should take refresher lessons on the application of the Case No. 6726, Rollo, pp. 26-28.
penalties and the Indeterminate Sentence Law. 14 137 Phil. 112, 120 [1969].
9 Regional Trial Court Decision, Rollo, pp. 26-28. 122

10 Court of Appeals’ Decision, Rollo, pp. 30-35. 122 SUPREME COURT REPORTS ANNOTATED
11 Filed on July 20, 1999, Rollo, pp. 8-20. Pader vs. People
121 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
VOL. 325, FEBRUARY 8, 2000 121 and penalized under Article 358, Revised Penal Code, prescribing the penalty of arresto
Pader vs. People mayor or a fine not exceeding 200 pesos.
WHEREFORE, we resolve to DENY the petition. However, we set aside the decision of the
meaning judging them separately, but also upon the special circumstances of the case,
Court of Appeals in CA-G.R. CR No. 21710 and find petitioner Rogelio Pader guilty only of
antecedents or relationship between the offended party and the offender, which might tend to
slight oral defamation. We impose on him a fine of P200.00 and costs.
prove the intention of the offender at the time.12
SO ORDERED.
Unquestionably, the words uttered were defamatory. Considering, however, the factual
Puno, Kapunan and Ynares-Santiago, JJ., concur.
backdrop of the case, the oral defamation was only slight. The trial court, in arriving at its
Davide, Jr. (C.J., Chairman), It should not be denial of the petition, but a partial grant
decision, considered that the defamation was deliberately done to destroy Atty. Escolango’s
thereof.
reputation since the parties were political opponents.
Petition denied but judgment of Court of Appeals in CA-G.R. CR No. 21710 set aside.
We do not agree. Somehow, the trial court failed to appreciate the fact that the parties were
Petitioner guilty only of slight oral defamation with a fine of P200.00.
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 defamation was not of serious or insulting nature.

84
 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
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 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 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 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
to criminal and civil liability.—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 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. “MAS MALAKING HALAGA ANG NADISPALKO
Reyes, Francisco and Associates; Eufracio Segundo C. Pagunuran, Alfredo A. Dy and Louis P.
Acosta for petitioner. NILA SA STATES, MAY MGA NAIWAN DING
The Solicitor General for respondent. ASUNTO DOON SI ANNABELLE”
NACHURA, J.:
Before us is a petition1 for review on certiorari, under Rule 45 of the Rules of Court, of the “IMPOSIBLENG NASA AMERIKA NGAYON SI
Decision2 dated September 3, 2002 and the Resolution3 dated March 24, 2003 of the Court of ANNABELLE DAHIL SA KALAT DIN ANG
Appeals (CA) in CA-G.R. CR No. 20890 entitled “People of the Philippines v. Cristenelli S.
Fermin and Bogs C. Tugas.” ASUNTO NILA DU’N, BUKOD PA SA
On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2) NAPAKARAMING PINOY NA HUMAHANTING SA
criminal informations for
KANILA MAS MALAKING PROBLEMA ANG
_______________ KAILANGAN NIYANG HARAPIN SA STATES
DAHIL SA PERANG NADISPALKO NILA,
1 Rollo, pp. 3-43. NAGHAHANAP LANG NG SAKIT NG KATAWAN
2 Penned by Associate Justice Salvador J. Valdez, Jr., with SI ANNABELLE KUNG SA STATES NGA NIYA
Associate Justices Mercedes Gozo-Dadole and Amelita G. MAIISIPANG PUMUNTA NGAYON PARA LANG
Tolentino, concurring; id., at pp. 45-60. TAKASAN NIYA SI LIGAYA SANTOS AT ANG
3 Id., at pp. 62-67. SINTENSIYA SA KANYA”
137 when in truth and in fact, the accused very well knew that the
VOL. 550, MARCH 28, 2008 137 same are entirely false and untrue but were publicly made for
Fermin vs. People no other purpose than to expose said ANNABELLE RAMA
libel4 were filed against Cristinelli5 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
informations uniformly read— be a fugitive from
“That on or about the 14th day of 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 4 Both entitled “People of the Philippines v. Cristenelli S.
Magnolia Tulip St., Roxas District, Quezon City, and Fermin and Bogs C. Tugas” and docketed as Criminal Cases
circulated in Quezon City and other parts of Metro Manila and Nos. Q-95-62823 and Q-95-62824.
the whole country, conspiring together, confederating with and 5 Also referred in the records as Cristenelli.
mutually helping each other, publicly and acting with malice, 6 Annabelle Rama Gutierrez in one, and Eduardo (Eddie)
did then and there willfully, unlawfully and feloniously print Gutierrez in the other.
and circulate in the headline and lead story of the said GOSSIP 138
TABLOID issue of June 14, 1995 the following material, to wit: 138 SUPREME COURT REPORTS ANNOTATED

89
 Fermin vs. People 7 Records, pp. 2-3.
justice and a swindler, thereby causing dishonor, discredit and 8 Id., at pp. 181-194.
contempt upon the person of the offended party, to the damage 9 Id., at pp. 193-194.
139
and prejudice of the said ANNABELLE RAMA GUTIERREZ.
CONTRARY TO LAW.”7 VOL. 550, MARCH 28, 2008 139
Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded “not guilty.” Fermin vs. People
Thereafter, a joint trial ensued. firmed the conviction of petitioner, but acquitted Tugas on account of non-participation in the
After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision8dated publication of the libelous article. The fallo of the Decision reads—
January 27, 1997, found petitioner and Tugas guilty of libel. The dispositive portion of the
Joint Decision reads—
“WHEREFORE, judgment is hereby rendered as follows:
“WHEREFORE, prosecution having established the guilt of the 1. The appealed decision as against the accused-
accused, judgment is hereby rendered finding CRISTENELLI appellant BOGS C. TUGAS is REVERSED and SET
S. FERMIN and BOGS C. TUGAS GUILTY beyond ASIDE, and another is entered ACQUITTING him of
reasonable doubt, of libel, punishable under Art. 355 of the the crime charged and ABSOLVING him from any civil
Revised Penal Code and sentences them to an indeterminate liability; and
penalty of three (3) months and eleven (11) days of arresto 2. The same appealed decision as against accused-
mayor, as minimum, to one (1) year, eight (8) months and appellant CRISTENELLI S. FERMIN is AFFIRMED,
twenty-one (21) days of prision correccional, as maximum, for with the MODIFICATION that the award of moral
each case. damages is REDUCED to P300,000.00 for EACH
Likewise, accused Cristenelli S. Fermin and Bogs Tugas are offended party, and the award of attorney’s fees is
sentenced to pay jointly and solidarily: DELETED.
a) moral damages of: Costs against the appellant FERMIN.
1. P500,000.00 to Annabelle Rama in Criminal Case SO ORDERED.”10
The CA denied petitioner’s motion for reconsideration for lack of merit in the Resolution dated
No. Q-95-62823; and March 24, 2003. Hence, this petition, raising the following arguments:
2. P500,000.00 to Eddie Gutierrez in Criminal Case No. I.
Q-95-62824; THE RULING IN U.S. VS. TAYLOR, PEOPLE VS.
b) attorney’s fees of P50,000.00. TOPACIO AND SANTIAGO, U.S. VS. MADRIGAL AND U.S.
SO ORDERED.”9 VS. SANTOS AND THE HOLDING IN U.S. VS. OCAMPO AS
Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its Decision dated
September 3, 2002, af-
CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS.
BELTRAN AND SOLIVENREQUIRING KNOWLEDGE,
_______________ PARTICIPATION AND COMPLICITY BY THE
PUBLISHER IN THE PREPARATION AND APPROVAL

90
OF THE LIBELOUS ARTICLE TO SUSTAIN THE offending article, nor in the review, editing, examination, and approval of the articles published
in Gossip Tabloid.
LATTER’S CONVICTION FOR LIBEL ARE APPLICABLE
IN THE PRESENT CASE. _______________
II.
ART. 360 OF THE REVISED PENAL CODE WHICH 11 Id., at pp. 7-8.
MAKES A PUBLISHER LIABLE FOR LIBEL TO THE 12 28 Phil. 599 (1914).
SAME EXTENT AS IF HE WERE THE AUTHOR 13 59 Phil. 356 (1934).
THEREOF MERELY CREATES A DIS- 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.
10 Rollo, pp. 59-60. 141
140 VOL. 550, MARCH 28, 2008 141
140 SUPREME COURT REPORTS ANNOTATED Fermin vs. People
Fermin vs. People The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact,
damning.
PUTABLE PRESUMPTION WHICH MAY BE REBUTTED Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case. U.S.
BY CONTRARY EVIDENCE. 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,
III. whereas U.S. v. Abad Santos refers to criminal responsibility under the Internal Revenue Law
THE QUESTIONED ARTICLE IS NOT LIBELOUS. (Act. No. 2339).
The other cases are more in point, but they serve to reinforce the conviction of, rather than
IV. absolve, petitioner.
THE QUESTIONED ARTICLE IS PROTECTED BY THE 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
MANTLE OF THE FREEDOM OF THE PRESS AND IS 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
WITHIN THE REALM OF FAIR AND HONEST during the trial showed that accused was the manager of the publication without the
COMMENT.11 corresponding evidence that, as such, he was directly responsible for the writing, editing,
Being interrelated, we shall discuss the first and the second issues jointly, then the third and the or publishing of the matter contained in the said libelous article.18
fourth issues together. In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of
Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal the Revised Penal Code which includes the verb “publicar.” Thus, it was held that Article 360
Code, it is mandatory that the publisher knowingly participated in or consented to the includes not only the author or the person who causes the libelous matter to be published, but
preparation and publication of the libelous article. This principle is, allegedly, based on our also the person who prints or publishes it.
ruling in U.S. v. Taylor,12 People v. Topacio and Santiago,13U.S. v. Madrigal,14 U.S. v. Abad Based on these cases, therefore, proof of knowledge of and participation in the publication of
Santos,15 and U.S. v. Ocampo,16 as purportedly clarified in People v. Beltran and Soliven.17 She the offending article is not required, if the accused has been specifically identified as “author,
submits that these cases were applied by the CA in acquitting her co-accused Tugas, and being editor, or proprietor” or “printer/publisher” of the publication, as petitioner and Tugas are in
similarly situated with him, she is also entitled to an acquittal. She claims that she had adduced this case.
ample evidence to show that she had no hand in the preparation and publication of the

91
_______________
18 Supra note 12, at pp. 604-605. (Emphasis supplied.)
142
142 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
The rationale for the criminal culpability of those persons enumerated in Article 360 of the
Revised Penal Code19 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
“One who furnishes the means for carrying on the publication
of a newspaper and entrusts its management to servants or
employ-
_______________
19 Art. 360. 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. x x x (Emphasis supplied)
20 Supra note 16, at pp. 50-52.
143
VOL. 550, MARCH 28, 2008 143
Fermin vs. 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 proprietor or manager.”
92
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
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, which 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 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
144 SUPREME COURT REPORTS ANNOTATED
Fermin vs. 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 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
VOL. 550, MARCH 28, 2008 145
Fermin vs. People
The doctrine of stare decisis, embodied in Article 824 of the Civil Code, is enunciated, thus:
“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
93
subsequent cases by all courts in the land. The doctrine of stare A: Yes, that is correct.
decisis is based on the principle that once a question of law has
ATTY. ALENTAJAN:
been examined and decided, it should be deemed settled and
closed to further argument.”25 (Emphasis supplied) That is all for the witness, your Honor.
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 COURT: Do we get it right from you, if you were acting as you were, you will not
adopt the same. Be that as it may, we find no compelling reason to revisit U.S. v. Ocampo; to allow the said publication of this same article or same stories?
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 A: If I were, if I was physically present, honestly I will because if you can see the
approval on the part of the publisher to be liable for the publication of a libelous article, would
article, your Honor, it is according to our source, it is not a direct comment.
be reading into the law an additional requirement that was not intended by 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 COURT: So whether you are there or not, [the] same article leading to them (sic)
petitioner’s Joint Counter-Affidavit,26 and as gleaned from his testimony before the trial court, will still find its way to come out?
to wit:

A: Yes, your honor.27

_______________
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
24 “Judicial decisions applying or interpreting the laws or the was considered meritorious by the CA, that he was confined at the Mother of Perpetual Help
constitution shall form part of the legal system of the Clinic in Angeles City, is unavailing, in view of the testimony of his attending physician that
Tugas’ medical condition did not prevent him from performing his work, thus—
Philippines.”
25 Castillo v. Sandiganbayan, 427 Phil. 785, 793; 377 SCRA Q: How would you describe the condition of the patient on June 13, 1995?
509, 515 (2002).
26 Records, p. 17. A: He is in stable condition.
146
146 SUPREME COURT REPORTS ANNOTATED _______________
Fermin vs. People
27 Cross-examination of Bogs Tugas; TSN, March 11, 1996, pp. 36-37.

WITNESS: As editor-in-chief, I have no participation in the writing of the

147
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 the article,
before the same was printed and published in GOSSIP Tabloid. VOL. 550, MARCH 28, 2008 147
Fermin vs. People
Q: You do not deny the statements in this publication as executed by you in the
counter-affidavit and sworn in before the City Prosecutor, is this correct?

94
Q: You said he was in severe pain, from your opinion, was that condition A: No, sir.
sufficient to enable him to work?
Q: Now, prior to 7:10 o’clock in the morning of June 13, 1995, you did not see Mr.
A: Yes, in my opinion.28 Bogs Tugas?

Q: You said your impression of the patient was urethral colic and this was caused A: I saw him, he was admitted at 7:00 o’clock but I saw him before.
by spasm?
Q: How long before 7:10 were you able to see him?
A: 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.
148 SUPREME COURT REPORTS ANNOTATED
Q: In fact, visitors were allowed to see him? Fermin vs. People

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?

Q: According to you, he was able to work also, he is not totally incapacitated in A: Yes, sir.
performing certain chores in the hospital room?

95
Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-in- MAS MALAKING HALAGA ANG NADISPALKO NILA
chief of a newspaper tabloid?
SA STATES, MAY MGA NAIWAN DING ASUNTO DU’N
A: Yes, sir. 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
Q: And some of his work is done in your boarding house? ASUNTONG INIWAN DU’N NOON PA, NAKAPAG-ABROAD MAN SIYA, E,
PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA
A: I do not know about it. 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 MGA MAMAHALING KALDERO NA IBINEBENTA NILA
Q: How did you know that he is working on his paper works in Quezon City? Did NOON SA AMERIKA, DU’N SILA NAGKAPROBLEMA, MILYON-MILYON ANG
you see him do that? INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA PILIPINAS NOON!
The rest of the article, which continued to the entire second page of the tabloid, follows—
A: I only know he goes to Manila everyday. “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.
But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas because Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang
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.
Anent the third and fourth issues, petitioner argues that the subject article in the June 14, 1995 Ruffa Gutierrez na hindi pinayagang makapagpiyansa ng
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.
The banner headlines of the offending article read: May mga nagpapalagay na sa pamamagitan ng tinatawag na
KUNG TOTOONG NAKATAKAS NA SI ANNABELLE back-door exit, ang pag-alis ng bansa sa paraang hindi na
RAMA, IMPOSIBLENG SA STATES SIYA NAGPUNTA! kailangan pang dumaan sa NAIA, ay nakaalis na si Annabelle
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

96
“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 magtatago, 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 naturang 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 na 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 harapin 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
VOL. 550, MARCH 28, 2008 153
Fermin vs. People
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
98
company of the cookware.34 To the contrary, both petitioner and Tugas failed to adduce Q: When you say hard, you wanted your candidates to win, is it not?
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 A: Yes, Sir.
that she would use her skills as a writer to campaign for them. Complainant Eddie Gutierrez
ran against 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?

33 Exhibits “E-4” to “E-8”; Records, pp. 75-76.
34 Testimony of Eddie Gutierrez; TSN, January 15, 1996, pp. A: One of them is Eddie Gutierrez, Sir.
66-68, 85-87.
154 Q: And the tandem of Marquez and Golez versus the tandem of Olivares and
154 SUPREME COURT REPORTS ANNOTATED Eddie Gutierrez, am I correct?
Fermin vs. People
then incumbent Golez for the congressional seat in Parañaque City. Petitioner testified in this A: Actually, that was the situation at that time, Sir.
wise—
Q: Of course, the tandem of Joey Marquez was working hard to win over their
Q: When you acted as writer during the campaign, as you said, for Joey Marquez opponent, is it not?
and Golez, of course you did not give your services for free to these candidates,
were you paid? A: Whatever their problems were, I am out.

A: I was not paid, Sir. Q: As a hard campaigner, you wanted your team to win over the other, is this
correct?
Q: You just wanted to help them, am I correct?
A: Yes, Sir.
A: Yes, because they are my friends, Sir.
Q: Of course you understand what PRO work is, it includes propaganda, is that
Q: And you wanted them to win the election, thru your being a writer, is that correct?
correct?
A: I am sorry I don’t accept PR work, Sir.155
A: Yes, Sir.
VOL. 550, MARCH 28, 2008 155
Q: You were campaigning hard for Golez and Marquez, right?
Fermin vs. People
A: Right, Sir.
Q: 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 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.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
156 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
and malicious comments, whether in broadcast media or in print, about their personal lives. 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
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 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.
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.”38
In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld.
_______________
37 Soriano v. Intermediate Appellate Court, No. L-72383,
November 9, 1988, 167 SCRA 222, 231 (1988).
100
38 Borjal v. Court of Appeals, 361 Phil. 1, 28; 301 SCRA 1,
31-32 (1999).
157
VOL. 550, MARCH 28, 2008
Fermin vs. People
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 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 cases39 cited therein in which
_______________
39 “In Sazon v. Court of Appeals (325 Phil. 1053, 1068; 255
SCRA 692, 703 [1996]), the Court modified the penalty
imposed upon petitioner, an officer of a homeowners’
association, for the crime of libel from imprisonment and fine
in the amount of P200.00, to fine only of P3,000.00, with
subsidiary imprisonment in case of insolvency, for the reason
that he wrote the libelous article merely to defend his honor
against the malicious messages that earlier circulated around
the subdivision, which he thought was the handiwork of the
private complainant.
In Mari v. Court of Appeals (388 Phil. 269, 279; 332 SCRA
475, 483 [2000]), in which the crime involved is slander by
deed, the Court modified the penalty imposed on petitioner, an
ordinary government employee, from imprisonment to a fine of
P1,000.00, with subsidiary imprisonment in case of insolvency,
on the ground that the latter committed the offense in the heat
of anger and in reaction to a perceived provocation.
In Brillante v. Court of Appeals (G.R. Nos. 118757 & 121571,
November 11, 2005, 474 SCRA 480, 484), the Court deleted
the penalty of imprisonment imposed upon petitioner, a local
politician, but maintained the penalty of fine of P4,000.00, with
subsidiary imprisonment in case of insolvency, in each of the
five (5) cases of libel, on the ground that the intensely feverish
157 passions evoked during the election period in 1988 must have
agitated petitioner into writing his open letter, and that
incomplete privileged communication should be appreciated in
favor of petitioner, especially considering the wide latitude
traditionally given to defamatory utterances against public
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
SCRA 275, 292), the Court opted to impose upon petitioner, a
lawyer,
158
158 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
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.
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
for estafa. Petitioner fueled these speculations through her article. However, her article went
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
such as private complainants, and consonant with Administrative Circular No. 08-2008, the
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
moral damages for each of the private complainants in the amount of P500,000.00, as ordered
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 account the
fact that petitioner and the private complainants were on relatively good terms with each other,
and complainants gave no cause or offense which could have provoked the malicious
publication.
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
VOL. 550, MARCH 28, 2008 159
Fermin vs. People
WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR
No. 20890 is AFFIRMED with the MODIFICATION 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])

102
 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
U.S. Supreme Court the Memoirsplurality, it is held:

1. Obscene material is not protected by the First

Miller v. California, 413 U.S. 15 (1973)
Amendment. Roth v. United States, 354 U. S. 476, reaffirmed.
A work may be subject to state regulation where that work,
Miller v. California
taken as a whole, appeals to the prurient interest in sex;
portrays, in a patently offensive way, sexual conduct
No. 70-73
specifically defined by the applicable state law; and, taken as a
Argued January 18-19, 1972 whole, does not have serious literary, artistic, political, or
scientific value. Pp. 413 U. S. 23-24.
Reargued November 7, 1972
2. The basic guidelines for the trier of fact must be: (a) whether
Decided June 21, 1973 "the average person, applying contemporary community
standards" would find that the work, taken as a whole, appeals
413 U.S. 15 to the prurient interest, Roth, supra, at 354 U. S. 489, (b)
whether the work depicts or describes, in a patently offensive
APPEAL FROM THE APPELLATE DEPARTMENT, way, sexual conduct specifically defined by the applicable state
SUPERIOR COURT law, and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. If a state
OF CALIFORNIA, COUNTY OF ORANGE obscenity law is thus limited, First Amendment values are
adequately protected by ultimate independent appellate review
Syllabus of constitutional claims when necessary. Pp. 413 U. S. 24-25.

103
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 employ a
"national standard." Pp. 413 U. S. 30-34.
Vacated and remanded.
Page 413 U. S. 16
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).
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. 18
based on his conduct in causing five unsolicited advertising
brochures to be sent through the mail in an envelope 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.
104
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]
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
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.
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: "
105
". . . 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. . . ."
[Emphasis by Court in Roth opinion.]
"We hold that obscenity is not within the area of
constitutionally protected speech or press."
354 U.S. at 354 U. S. 48 85 (footnotes omitted).
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
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."
Id. at 383 U. S. 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without
redeeming social importance," Memoirsrequired
Page 413 U. S. 22
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, 479 F.2d
577, 579581 (CA5 1973).
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
Page 413 U. S. 23
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.
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.
II
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. 24
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 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,
Page 413 U. S. 25
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
examples of what a state statute could define for regulation
under part (b) of the standard announced in this opinion, supra:
(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.
Sex and nudity may not be exploited without limit by films or
pictures exhibited or sold in places of public accommodation
any more than live sex and nudity can
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
108
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
Page 413 U. S. 27
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
"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. 28
the inability to define regulated materials with ultimate, god-
like 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."
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.
[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. 482-
485.
"Our duty admits of no 'substitute for facing up
Page 413 U. S. 30
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.
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
Page 413 U. S. 31
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
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 "state-
wide" 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.
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. 32
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. 230-
232; 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 state-
ordered 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 which 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.
Vacated and remanded.
[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. . . ."
"§ 311. Definitions"
"As used in this chapter: "
"(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."
"(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."
"(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:
"(e) 'Knowingly' means being aware of the character of the
matter."
114
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, 685-
686 (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).
[Footnote 2]
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
"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."
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."
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.)
[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 the 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 down 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 "[T]hree elements must coalesce: it must be established that (a)
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 by 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:
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 may be
decisive in the determination of obscenity."
Id. at 383 U. S. 470. As Mr. Justice Black said in dissent,
120
". . . 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.
Page 413 U. S. 39
A further refinement was added by 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 so-
called 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]
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."
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
Page 413 U. S. 41
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:
"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."
Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 707.
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 obscene 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.
III
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
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 magazine 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
Page 413 U. S. 45
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
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."
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.
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.
124
[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.
[Footnote 2/4]
Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 197 (STEWART,
J., concurring).
[Footnote 2/5]
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."
Report of the Commission on Obscenity and Pornography 53
(1970).
[Footnote 2/6]
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."
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.
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. . . ."
"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."
Report of the Commission on Obscenity and Pornography 63
(1970).
[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).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE
STEWART and MR. JUSTICE MARSHALL join, dissenting.
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 mailed 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. *
"[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."

128
 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, a prosecution
No. L-69500. July 22, 1985.*
________________

JOSE ANTONIO U. GONZALEZ * EN BANC.

718

in behalf of MALAYA FILMS, 718 SUPREME COURT REPORTS ANNOTATED

Gonzales vs. Kalaw Katigbak
LINO BROCKA, JOSE F. 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.
Same; Same; The power of the Board of Review for Motion Pictures and Television (BRMPT)
LACABA, and DULCE Q. 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

SAGUISAG, 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
petitioners, vs. CHAIRMAN 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
MARIA KALAW KATIGBAK, 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

GENERAL WILFREDO C. 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
ESTRADA (Ret.), and THE 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
BOARD OF REVIEW FOR 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—

MOTION PICTURES AND 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. There is merit to the observation of Justice
TELEVISION (BRMPT), 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
respondents. 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
Constitutional Law; Motion Pictures; Censorship is, in extreme cases, a sine qua non to the
719
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 VOL. 137, JULY 22, 1985 719
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 Gonzales vs. Kalaw Katigbak
aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis 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

129
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 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 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 sa
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 respon-
720
720 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
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 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. 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
VOL. 137, JULY 22, 1985 721
Gonzales vs. Kalaw Katigbak
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 freedom 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 constitutional 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
130
________________
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
722 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
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 are 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 affirmative 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 be 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 are
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 the film. Viewed as a whole, there is no
basis even for the vague speculations advanced by the Board as basis for its classifica-
________________
4 Petition, par. 3.33.
5 Ibid, par. 3.35.
6 Answer, 9-10.
7 Ibid, 10.
723
VOL. 137, JULY 22, 1985 723
Gonzales vs. Kalaw Katigbak
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 as 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 affords 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
724 SUPREME COURT REPORTS ANNOTATED
131

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
________________
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).
725
VOL. 137, JULY 22, 1985
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
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
. 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 approval.
________________
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
725 726
726 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
132
 . 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 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.”21
. 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 allowable. 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.
. 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
________________
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).
727
VOL. 137, JULY 22, 1985
Gonzales vs. Kalaw Katigbak
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 reality. 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
________________
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.
728
728 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
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 former.”31 As thus construed, there can be no valid objection to the
727 sufficiency of the controlling standard and its conformity to what the Constitution ordains.
133
9. This being a certiorari petition, the question before the Court is whether or not there was a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as
grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident “For Adults Only.”
in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was Teehankee, Makasiar, Concepcion, Jr., Melencio-
classified as “For Adults Only.” without any deletion or cut. Moreover its perception of what Herrera, Plana, Escolin, Relova, Gutierrez, Jr., Cuevas and Alampay, JJ., concur.
constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was Aquino, J., in the result. Petitioner has no cause of action for certiorari.
an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse De la Fuente, J., did not take part.
can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in Abad Santos, J., is on official leave.
this explanation of respondents in its Answer to the amended petition: “The adult classification Petition dismissed.
given the film serves as a warning to theater operators and viewers that some contents Notes.—The request of a school head for a review of student organ’s publication policies does
of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club not constitute an impairment of freedoms of speech and press. (Laxamana vs. Borlata, 47
and a good portion of the film shots concentrated on some women erotically dancing naked, or SCRA 29.)
at least nearly naked, on the theater stage. Another scene on that stage depicted the women The Constitution frowns upon disorder or tumult attending a public rally. Peaceable assembly
kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of is guaranteed, but not
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, 34 Cf. United States v. Roth, 237 F 2d 796 (1956).
730

________________ 730 SUPREME COURT REPORTS ANNOTATED

De Guzman vs. Court of Appeals
resort to force. (Reyes vs. Bagatsing, 125 SCRA 553.)
30 47 Phil. 385 (1925). Litigations involving permits to stage a rally are better started at the trial court level. (Ruiz vs.
31 Ibid, 415. Gordon, 126 SCRA 233.)
The curtailment of the freedoms of speech and press of radio and TV stations is permissible for
32 Answer to Amended Petition, 4. election purposes. (United Democratic Opposition (UNIDO) vs. COMELEC, 104 SCRA 17.)
33 Ibid, 4-5. Remarks made at a board meeting are privileged in nature as a valid exercise of one’s
729 constitutional freedom of expression. An employee cannot be dismissed for making such
remarks alleged to be libelous. (Union of Supervisors (R.B.)—NATU vs. Sec. of Labor, 109
VOL. 137, JULY 22, 1985 729 SCRA 139.)
Gonzales vs. Kalaw Katigbak
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

134

G.R. No. 80806. October 5, 1989.*
LEO PITA, doing business under
the name and style of PINOY
PLAYBOY, petitioner, vs. THE
COURT OF APPEALS, RAMON
BAGATSING, and NARCISO
CABRERA, respondents.
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 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.” “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 question 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
135

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 earlier, 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 comes 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 present 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 respondent Mayor’s act
was sanctioned by police power is no license to seize property in disregard of due process;
Police power
364
364 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
right to due process of law and the right against unreasonable searches and seizures,
363 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 or “obscene”.
Same; Same; Same; Same; Court not ruling out warrantless searches.—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.—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 constitutional nor legal provision which would
365
VOL. 178, OCTOBER 5, 1989 365
Pita vs. Court of Appeals
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 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.
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.:
136
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
366 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 injunction 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
137
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
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”.
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
_____________
138
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 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.”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
VOL. 178, OCTOBER 5, 1989 369
Pita vs. Court of Appeals
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
139
because of their immaturity are not in a position to resist and a corrupting influence specially on the youth of the land. x x
shield themselves from the ill and perverting effects of these x14
pictures.11 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
xxx xxx xxx exhibitions and galleries to satisfy and improve their artistic tastes,”15 could the same
As the Court declared, the issue is a complicated one, in which the fine lines have neither been legitimately lay claim to “art”? For another, suppose that the exhibition was so presented that
drawn nor divided. It is easier “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.

10 97 Phil. 418 (1955), per Montemayor, J.

11 Supra, 419. ____________
370
370 SUPREME COURT REPORTS ANNOTATED 12 Supra.
Pita vs. Court of Appeals 13 101 Phil. 749 (1957).
said than done to say, indeed, that if “the pictures here in question were used not exactly for 14 Supra, 752.
art’s sake but rather for commercial purposes,”12 the pictures are not entitled to any
constitutional protection.
15 Go Pin, supra.
It was People v. Padan y Alova,13 however, that introduced to Philippine jurisprudence the 16 Padan y Alova, supra.
“redeeming” element that should accompany the work, to save it from a valid prosecution. We 371
quote:
VOL. 178, OCTOBER 5, 1989 371
x x x We have had occasion to consider offenses like the
Pita vs. Court of Appeals
exhibition of still or moving pictures of women in the nude,
In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the
which we have condemned for obscenity and as offensive to United States, adopted the test: “Whether to the average person, applying contemporary
morals. In those cases, one might yet claim that there was 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
involved the element of art; that connoisseurs of the same, and measured obscenity in terms of the “dominant theme” of the work, rather than isolated
painters and sculptors might find inspiration in the showing of 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
pictures in the nude, or the human body exhibited in sheer moreover to make the determination of obscenity essentially a judicial question and as a
nakedness, as models in tableaux vivants. But an actual 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
exhibition of the sexual act, preceded by acts of lasciviousness, from development to development, which, states one authoritative commentator (with ample
can have no redeeming feature. In it, there is no room for art. sarcasm), has been as “unstable as it is unintelligible.”19
Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one “utterly
One can see nothing in it but clear and unmitigated obscenity, without any redeeming social value,”21 marked yet another development.
indecency, and an offense to public morals, inspiring and The latest word, however, is Miller v. California,22 which expressly
abandoned Massachusettes, and established “basic guidelines,”23 to wit: “(a) whether ‘the
causing as it does, nothing but lust and lewdness, and exerting 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

140
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
______________
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.
372
372 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 as 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
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
_____________
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).
373
VOL. 178, OCTOBER 5, 1989 373
Pita vs. Court of Appeals
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 us 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
141
____________
30 Gonzales vs. COMELEC, No. L-27833, April 18, 1969, 27
SCRA 835; Reyes v. Bagatsing, No. 65366, November 9,
1983, 125 SCRA 553.
31 Supra.
32 Supra, 572 per Teehankee, J., Concurring; emphasis in the
original.
33 Supra, emphasis in the original.
34 Supra, emphasis in the original.
35 Supra, emphasis in the original.
374
374 SUPREME COURT REPORTS ANNOTATED
Pita vs. Court of Appeals
The above disposition must not, however, be taken as a neat effort to arrive at a solution—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 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 have 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
P.D. No. 969),”37 is also fine, but the question, again, is: Has the petitioner been found guilty
under the statute?
_____________
36 Rollo, id., 41.
37Id., 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
VOL. 178, OCTOBER 5, 1989 375
Pita vs. Court of Appeals
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 legislation that may interfere
with personal liberty or property in order to promote the general welfare.”39 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 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
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.
142
 . (c)The person aggrieved by the forfeiture action of
the Chief of Constabulary may, within fifteen (15) days after
his receipt of a copy of the decision, appeal the matter to the
Secretary of National Defense for review. 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
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.
376
376 SUPREME COURT REPORTS ANNOTATED
Pita vs. Court of Appeals
. who allows the violations of Section 1 hereof, the
penalty as provided herein shall be imposed in the maximum
period and, in addition, the accessory penalties provided for
in the Revised Penal Code, as amended, shall likewise be
imposed.40
Under the Constitution,41 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
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
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 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.—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-
_______________
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
VOL. 178, OCTOBER 5, 1989 377
Pita vs. Court of Appeals
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.
143
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 resumé.
. 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;
. 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 action;
. 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 reads 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
378 SUPREME COURT REPORTS ANNOTATED
Pita vs. Court of 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 under the Civil Code47 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;
. (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 for 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 searches and
seizures;
. (10)The liberty of abode and of changing the same;
144
 . (11)The privacy of communication and
correspondence;
. (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 Government for redress of grievances;
. (14)The right to be free from involuntary servitude
in any form;
. (15)The right of the accused against excessive bail;
. (16)The right of the accused to be heard by himself
and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
. (17)Freedom from being compelled to be a witness
against one’s self, or from being forced to confess guilt, or
from being induced by a
379
VOL. 178, OCTOBER 5, 1989
Pita vs. Court of Appeals
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search
and seizure
_______________
. promise of immunity or reward to make such
confession, except when the person confessing becomes a
State witness;
. (18)Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed or inflicted
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
and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute.
48 REV. PEN. CODE, arts. 129, 130. The provisions state:
“ART. 129. Search warrants maliciously obtained and abuse
in the service of those legally obtained.—In addition to the
379 liability attaching to the offender for commission of any other
offense, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period and a fine not
exceeding P1,000 pesos shall be imposed upon any public
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.
The acts, committed by a public officer or employee,
punishable by the above article are:
. (1)Procuring a search warrant without just cause;
145
 . (2)Exceeding one’s authority or using unnecessary
severity in the execution of a legally procured search
warrant.”

“ART. 130. Searching domicile without witnesses.—The

penalty of arresto mayor 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
380 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.

146
No. 90-26
Argued Jan. 8, 1991
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 G-
string -- 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.
904 F.2d 1081 (CA9 1990), reversed.
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.
(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
147
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 dancing 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 concluded 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.
148
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 there
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 Non-
Violence, 468 U. S. 288 (1984).
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, 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.
O'Brien burned his draft card on the steps of the South Boston
courthouse in the presence of a sizable crowd, and
Page 501 U. S. 567
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
rejected his contention that symbolic speech is entitled to full
First Amendment protection, saying:
"[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."
Id. at 391 U. S. 376-377 (footnotes omitted).
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
151
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, 333 U. S. 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 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]
This and other public indecency statutes were designed to
protect morals and public order. The traditional police power 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:
"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."
152
(Emphasis omitted.) And in Bowers v. Hardwick, 478 U. S.
186, 478 U. S. 196 (1986), we said:
"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.
And in Dallas v. Stanglin, 490 U. S. 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.
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 by 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. 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, 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 G-
string 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]
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."
154
State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587 [Footnote 2]
(1979) (emphasis added), appeals dism'd sub nom. Clark v.
Indiana, 446 U.S. 931, and Dove v. Indiana, 449 U.S. 806 Indiana Code § 35-451 (1988) provides:
(1980).
"Public Indecency"
Five years after Baysinger, however, the Indiana Supreme
Court reversed a decision of the Indiana Court of Appeals "Sec. 1. (a) A person who knowingly or intentionally, in a
holding that the statute did "not apply to activity such as the public place:"
theatrical appearances involved herein, which may not be
prohibited absent a finding of obscenity," in a case involving a "(1) engages in sexual intercourse;"
partially nude dance in the "Miss Erotica of Fort Wayne"
contest. Erhardt v. State,468 N.E.2d 224 (Ind.1984). The "(2) engages in deviate sexual conduct;"
Indiana Supreme Court did not discuss the constitutional issues
beyond a cursory comment that the statute had been upheld "(3) appears in a state of nudity; or"
against constitutional attack in Baysinger, and Erhardt's
conduct fell within the statutory prohibition. Justice Hunter "(4) fondles the genitals of himself or another person;"
dissented, arguing that
"commits public indecency, a Class A misdemeanor."
"a public indecency statute which prohibits nudity in any
"(b) 'Nudity' means the showing of the human male or female
public place is unconstitutionally overbroad. My reasons for so
genitals, pubic area, or buttocks with less than a fully opaque
concluding have already been articulated in State v.
covering, the showing of the female breast with less than a
Baysinger,(1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and
fully opaque covering of any part of the nipple, or the showing
DeBruler, JJ., dissenting)."
of the covered male genitals in a discernibly turgid state."
Id. at 225-226, 397 N.E.2d 580. Justice DeBruler expressed
JUSTICE SCALIA, concurring in the judgment.
similar views in his dissent in Erhardt. Ibid. Therefore, the
Indiana Supreme Court did not affirmatively limit the reach of
I agree that the judgment of the Court of Appeals must be
the statute in Baysinger, but merely said that, to the extent the
reversed. In my view, however, the challenged regulation must
First Amendment would require it, the statute might be
be upheld, not because it survives some lower level of First-
unconstitutional as applied to some activities.
Amendment scrutiny, but because, as a general law regulating

155
conduct and not specifically directed at expression, it is not
subject to First-Amendment scrutiny at all.
I Almost the entire domain of Indiana's statute is unrelated to
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:
"Indiana
Page 501 U. S. 573
does not regulate dancing. It regulates public nudity. . . .
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 run 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 nude 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
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, 659-
660, 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 "morality." 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]
Page 501 U. S. 576
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.
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
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. 577
government interest. Nor do our holdings require such
justification: we have never invalidated the application 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.
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 sit-
in); 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 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
"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 Non-
Violence, 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
(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 obeyed.
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,
Page 501 U. S. 580
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
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 any 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 non-
theater 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 nude 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 exact 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.
163
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]
164
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.
Accordingly, I find O'Brien satisfied, and concur in the
judgment.
[Footnote 3/1]
Cf., e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking
down state statute on Establishment Clause grounds due to
impermissible legislative intent).
[Footnote 3/2]
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
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]
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).
JUSTICE WHITE, with whom JUSTICE MARSHALL,
JUSTICE BLACKMUN, and JUSTICE STEVENS join,
dissenting.
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
166
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 ultimately 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 barrooms, 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 G-
strings. 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 performances 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" independent 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 deciding
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
170
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 statute 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
Page 501 U. S. 596
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.
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.
Accordingly, I would affirm the judgment of the Court of
Appeals, and dissent from this Court's judgment.
[Footnote 4/1]
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:
"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).

173
 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

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
U.S. Supreme Court order would be

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) "associated with the station's license file, and, in the event
subsequent complaints are received, the Commission will then
Federal Communications Commission v. Pacifica decide whether it should utilize any of the available sanctions it
Foundation has been granted by Congress."

No. 77-528

174
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 correctly
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.
175
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 individual
to another, whereas § 1464 deals with the content of public
broadcasts. Pp. 438 U. S. 738-741.
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
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:
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.
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.
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.
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 opinion as to Parts IV-A and IV-
176
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 contemporary 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.
177
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] "
Page 438 U. S. 731
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
"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 organs, at
times of the day when there is a reasonable risk that children
may be in the audience."
56 F.C.C.2d at 98. [Footnote 5]
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."
"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
Page 438 U. S. 735
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.
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,
for the two statutory provisions have a common origin.
Nevertheless, we analyze them separately.
Section 29 of the Radio Act of 1927 provided:
"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."
44 Stat. 1172.
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]
Page 438 U. S. 736
During the period between the original enactment of the
provision in 1927 and its reenactment in the Communications
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 Anti-
Defamation 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 broadcaster 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 anti-
censorship 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
182
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:
"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
preserve the vigor of patently offensive sexual and excretory
speech.
Page 438 U. S. 744
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
184
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.
The question in this case is whether a broadcast of patently
offensive words dealing with sex and excretion may be
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.
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 necessity." [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 the
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
186
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 vocabulary 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 children.
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.
Page 438 U. S. 750
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 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.
The judgment of the Court of Appeals is reversed.
It is so ordered.
|438 U.S. 726app|
187
APPENDIX TO OPINION OF THE COURT
The following is a verbatim transcript 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 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.
(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)
188
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)
Page 438 U. S. 755
[']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
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)
[Footnote 1]
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."
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."
Id. at 97.
[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."
[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:
"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 late
evening, but would be so during the day, when children are in
the audience. 56 F.C.C.2d at 98.
[Footnote 6]
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:
191
"[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
192
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."
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
"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]
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
193
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.
[Footnote 18]
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.
[Footnote 19]
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 21]
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]
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 queynte." 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
197
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 to most people regardless of age.
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"
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]
198
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. 636-
641 (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
199
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, 903-
909 (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 IV-
B, 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]
201
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.
[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),
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.
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.
202
I speech, a majority of the Court [Footnote 3/1] nevertheless
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
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 manner. Any
broader view of this authority would effectively empower a
majority to silence dissidents simply as a matter of personal
predilections."
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. Justice 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
Page 438 U. S. 765
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
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 undoubtedly 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.
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 minimum of effort. As
Chief Judge Bazelon aptly observed below,
"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."
204
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 clearly 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 -- can, 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 principled 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
207
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 prudent 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.
208
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
209
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
210
"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."
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,
"[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).
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
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 socio-
economic backgrounds. [Footnote 3/8]
Page 438 U. S. 777
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]
Where I refer without differentiation to the actions of "the
Court," my reference is to this majority, which consists of my
211
Brothers POWELL and STEVENS and those Members of the
Court joining their separate opinions.
[Footnote 3/2]
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).
[Footnote 3/3]
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.
[Footnote 3/4]
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 3/5]
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 3/6]
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.
[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]
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.
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 the
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.
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
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
Manual Enterprises v. Day, 370 U. S. 478, 370 U. S. 482-
484, 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., A104-
A106 (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. 366-
367; 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]
The Court properly gives no weight to the Commission's
passing reference in its order to 47 U.S.C. §
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
215
"'obscene' and 'indecent' in § 1464 are to be read as parts of a "It is true . . . that these are not criminal cases, but it is a
single proscription, applicable only if the challenged language criminal statute that we must interpret. There cannot be one
appeals to the prurient interest." construction for the Federal Communications Commission and
another for the Department of Justice. If we should give §
United States v. Simpson, 561 F.2d 53, 60 (CA7). [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:

216
217