ADVERTISEMENT
EN BANC
[G.R. No. 164785. April 29, 2009.]
ELISEO F. SORIANO, petitioner, vs. MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, respondents.
[G.R. No. 165636. April 29, 2009.]
ELISEO F. SORIANO, petitioner, vs. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the MTRCB, respondents.
D E C I S I O N
VELASCO,JR., J p:
In these two petitions for certiorari andprohibition under Rule 65, petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a decision of the Movie and Television Review and Classification Board (MTRCB) in connection with certain utterances he made in his television show, Ang Dating Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito. 1 . . .
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC), 2 against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioner's remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan. 3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan. 4 cDAISC
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3 (d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. 5 The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from hearing the case. 6 Two days after, however, petitioner sought to withdraw 7 his motion for reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,8 docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, "Ang Dating Daan".
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence.
SO ORDERED. 9
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN . . . IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION . . . CONSIDERING THAT:
I
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; SEcADa
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH 11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision.
It is petitioner's threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension.
Petitioner's contention is untenable.
Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute. 12 They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law. 13 And in determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as existing, the authority given should be liberally construed. 14
A perusal of the MTRCB's basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions. — The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the . . . production, . . . exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime such as but not limited to:
xxx xxx xxx
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;
xxx xxx xxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the . . . production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be . . . produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
xxx xxx xxx
k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act . . . . (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCB's authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3 (d), as quoted above, which empowers the MTRCB to "supervise, regulate, and grant, deny or cancel, permits for the . . . exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be . . . exhibited and/or broadcast by television".
Surely, the power to issue preventive suspension forms part of the MTRCB's express regulatory and supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an administrative investigation. 15 And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the complaint. 16 ECaTDc
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTIVE SUSPENSION ORDER. — Any time during the pendency of the case, and in order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive . . . suspension of the permit/permits involved, and/or closure of the . . . television network, cable TV station . . . provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioner's assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCB's duty of regulating or supervising television programs, pending a determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3 (c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCB's assailed action. Petitioner's restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3 (k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3 (k), we reiterate, provides, "To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act . . .." Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act. 17 As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also conferred by necessary implication. 18 Clearly, the power to impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioner's assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCB's authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioner's argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents' complaint. No less than petitioner admitted that the order was issued after the adjournment of the hearing, 19 proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue "[a]ny time during the pendency of the case". In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD 1986 20 and of administrative complaints that had been filed against him for such violation. 21
At any event, that preventive suspension can validly be meted out even without a hearing. 22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers.
Petitioner's position does not persuade. The equal protection clause demands that "all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed". 23 It guards against undue favor and individual privilege as well as hostile discrimination. 24 Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language similar to that which he used in his own, necessitating the MTRCB's disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like "putang babae" were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioner’s utterances in question can come within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. TcEaDS
There is nothing in petitioner's statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Even petitioner's attempts to place his words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and expression and an impermissible prior restraint. The main issue tendered respecting the adverted violation and the arguments holding such issue dovetails with those challenging the three-month suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3 (c) in particular, unconstitutional for reasons articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause. 25 Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of protection. 26 Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. 27 The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern. 28 In the oft-quoted expression of Justice Holmes, the constitutional guarantee "obviously was not intended to give immunity for every possible use of language". 29 From Lucas v. Royo comes this line: "[T]he freedom to express one's sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard for the rights of others". 30
Indeed, as noted in Chaplinsky v. State of New Hampshire, 31 "there are certain well-defined and narrowly limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems". In net effect, some forms of speech are not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause. 32 A speech would fall under the unprotected type if the utterances involved are "no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality". 33 Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest test, they being essentially modes of weighing competing values, 34 or, with like effect, determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or "fighting words", i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioner's statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations on the matter:
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive". . . . What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judge's sound discretion. 35
Following the contextual lessons of the cited case of Miller v. California, 36 a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards. HAaDTE
A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances "Gago ka talaga . . ., masahol ka pa sa putang babae . . . . Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!" may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated "G" or for general viewership, and in a time slot that would likely reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term "putang babae" means "a female prostitute", a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner further used the terms, "ang gumagana lang doon yung ibaba", making reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioner's words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adult's grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioner's utterances obscene and not entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioner's remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications Commission (FCC) v. Pacifica Foundation, 37 a 1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr. 38 and Chavez v. Gonzales, 39 is a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the language used as "patently offensive" and "indecent" under a prohibiting law, though not necessarily obscene. FCC added, however, that its declaratory order was issued in a "special factual context", referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCC's content-based regulatory action under scrutiny.
The Court in Chavez 41 elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak, 42 easily "reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein shown"; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the audience; and third, petitioner uttered his speech on a "G" or "for general patronage" rated program. Under Sec. 2 (A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is "[s]uitable for all ages", meaning that the "material for television . . . in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision". The words petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in petitioner's utterances on a general-patronage rated TV program, it may be readily proscribed as unprotected speech. aEcTDI
A view has been advanced that unprotected speech refers only to pornography, 43 false or misleading advertisement, 44 advocacy of imminent lawless action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet another exception, another instance of unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected speech, petitioner’s utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent and such danger must be grave and imminent. 45
Petitioner's invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil which the government has the power to prohibit. 46 Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government. 47 It was originally designed to determine the latitude which should be given to speech that espouses anti-government action, or to have serious and substantial deleterious consequences on the security and public order of the community. 48 The clear and present danger rule has been applied to this jurisdiction. 49 As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. 50 As we observed in Eastern Broadcasting Corporation, the clear and present danger test "does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums". 51
To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of "proximity and degree" the Court, however, in several cases — Ayer Productions v. Capulong 52 and Gonzales v. COMELEC, 53 applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation", 54 then the "balancing of interests" test can be applied.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. . . . We must, therefore, undertake the "delicate and difficult task . . . to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights . . . .
In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the "balancing-of-interests" test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.
xxx xxx xxx
Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's freedom, and the social importance and value of the freedom so restricted, "are to be judged in the concrete, not on the basis of abstractions", a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the legislation — the reference here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom. 55
This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory that it is the court's function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests. 57 To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow. ASIDTa
In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the government's interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner's prayer to continue as program host of Ang Dating Daan during the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall "extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other forms of discrimination". 58
Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their children's minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of nation-building. 59 In the same way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character. 60
Petitioner's offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the State's mandate to protect and care for them, as parens patriae, 61 constitute a substantial and compelling government interest in regulating petitioner's utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message, ["Fuck the Draft"], 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 that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. 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.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young:
. . . 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. 62
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:
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. . . . The [FFC'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 [FFC]. The content of the program in which the language is used will affect the composition of the audience . . . . 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'. We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a "pig in the parlor". Public interest would be served if the "pig" is reasonably restrained or even removed from the "parlor". ADEacC
Ergo, petitioner's offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can classify movies and television programs and can cancel permits for exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. . . .
xxx xxx xxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz.:
"The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character." 63
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption. It decides what movies are "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people", and what "tend to incite subversion, insurrection, rebellion or sedition", or "tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities", etc. Moreover, its decisions are executory unless stopped by a court. 64
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation, 65 it was held that the power of review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became "a necessary evil" with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each other's signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraint — denial of permit or subsequent punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3 (i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioner's exercise of his freedom of speech via television, but for the indecent contents of his utterances in a "G" rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioner's virtual inability to speak in his program during the period of suspension be plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past speech made on prime-time "G" rated TV program; it does not bar future speech of petitioner in other television programs; it is a permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB, 66 sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986. IcDHaT
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a "G" rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, "the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media". The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioner's television program is justified, and does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The Court has earlier adequately explained why petitioner's undue reliance on the religious freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his program. The Court sees no need to address anew the repetitive arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious speech. Parenthetically, petitioner's attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as an afterthought that this was his method of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word simply came out as profane language, without any warning or guidance for undiscerning ears.
As to petitioner's other argument about having been denied due process and equal protection of the law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no need to further delve into the fact that petitioner was afforded due process when he attended the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which the legislative process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. 67
Based on the foregoing pronouncements and analyzing the law in question, petitioner's protestation about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law.
Petitioner's posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec. 3 (k) of the decree authorizing the MTRCB "to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose and objectives of [the law]". As earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority: cDSAEI
. . . [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. . . . [W]hen the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its function. 68
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power "[to] promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives . . . ". And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS. — Without prejudice to the immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3 (d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public.
In Sec. 3 (c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures, television programs, and publicity materials "applying contemporary Filipino cultural values as standard", and, from there, determine whether these audio and video materials "are objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] . . ." and apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute. 69 The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non-delegation of legislative powers. 70 Administrative regulations or "subordinate legislation" calculated to promote the public interest are necessary because of "the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law". 71 Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decree's penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCB's decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the law and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioner's flawed belief that he may simply utter gutter profanity on television without adverse consequences, under the guise of free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say "any act that restrains speech should be greeted with furrowed brows" is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence. DIEAHc
Costs against petitioner.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Nachura, Leonardo-de Castro, Peralta and Bersamin, JJ., concur.
Puno, C.J., see Dissent.
Quisumbing, J., certifies that J. Quisumbing joined J. Carpio.
Carpio, J., see Dissenting Opinion.
Austria-Martinez, J., joins Justice Tinga in his concurring opinion.
Corona, J., please see separate opinion.
Carpio Morales, J., joins J. Puno and J. Carpio in their separate dissents.
Tinga, J., please see concurring opinion.
Brion, J., joins separate opinion of Justice Renato Corona.
Separate Opinions
CORONA, J.:
Free speech is a preferred right which has to be zealously guarded. Nonetheless, it is not absolute but limited by equally fundamental freedoms enjoyed by other members of society. It is also circumscribed by the basic principle of all human relations: every person must in the exercise of his rights and performance of his duties, act with justice, give everyone his due and observe honesty and good faith. 1 For these reasons, free speech may be subjected to reasonable regulation by the State in certain circumstances when required by a higher public interest.
Factual Backdrop
Petitioner Eliseo F. Soriano was one of the hosts of Ang Dating Daan, a television program aired on UNTV 37. The program was given a "G" rating by the Movie and Television Review and Classification Board (MTRCB).
On August 10, 2004, at around 10:00 in the evening, petitioner uttered the following statements in his program:
Lehitimong anak ng demonyo[!] [S]inungaling[!]
Gago ka talaga[,] Michael[!] [M]asahol ka pa sa putang babae o di ba[?] [']Yung putang babae ang gumagana lang doon [']yung ibaba, dito kay Michael ang gumagana ang itaas, o di ba? O, masahol pa sa putang babae [']yan. Sabi ng lola ko masahol pa sa putang babae [']yan. Sobra ang kasinungalingan ng mga demonyong ito. 2
Acting on complaints arising from the said statements, the MTRCB preventively suspended the airing of the program for 20 days. 3 Subsequently, the MTRCB found petitioner liable for his utterances and suspended him from his program for three months. 4
Petitioner now assails his suspension as a violation of his right to free speech.
Free Speech and the
In free speech cases, the medium is relevant and material. Each medium of expression presents its own peculiar free speech problems. 5 And in jurisprudence, 6 broadcast media receive much less free speech protection from government regulation than do newspapers, magazines and other print media. 7 The electromagnetic spectrum used by broadcast media is a scarce resource. As it is not available to all, unlike other modes or media of expression, broadcast media is subject to government regulation. 8 AaCTcI
The broadcast spectrum is a publicly-owned forum for communication that has been awarded to private broadcasters subject to a regulatory scheme that provides limited access to speakers and seeks to promote certain public interest goals. 9 For this reason, broadcast media is a public trust and the broadcaster's role is that of "a public trustee charged with the duty of fairly and impartially informing the public audience". 10 Thus, "of all forms of communication, it is broadcasting that has received the most limited [free speech] protection". 11 Indeed, an unabridgeable right to broadcast is not comparable to the right of the individual to speak, write or publish. 12 Moreover, it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. 13
Therefore, the use of the public airwaves for broadcasting purposes (that is, broadcasting television programs over the public electromagnetic spectrum) is a privilege, not a right. 14 With this privilege comes certain obligations and responsibilities, namely complying with the rules and regulations of the MTRCB or facing the risk of administrative sanctions and even the revocation of one's license to broadcast.
Equally Fundamental Rights as Limit
U.S. President Herbert Hoover (who was then Secretary of Commerce) stated that "[t]he other is a public medium and its use must be for a public benefit". 15 The dominant element for consideration in broadcast media is therefore the great body of viewing public, millions in number, countrywide in distribution. 16 To reiterate, what is paramount is the right of viewers, not the right of broadcasters.
What specific rights of viewers are relevant vis-Ã -vis the right of broadcasters to speak? Considering the uniquely pervasive presence of broadcast media in the lives of Filipinos, these rights are as follows:
(a) the right of every person to dignity; 17
(b) the natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character; 18
(c) the right of the youth to the promotion and protection by the State of their moral, spiritual, intellectual and social well-being; 19 and
(d) the right to privacy.
Right to dignity
The ideal of the Filipino people is to build a just and humane society and a regime of truth, justice, freedom, love, equality and peace. 20 In this connection, among the fundamental policies of the State is that it values the dignity of every human person. 21 The civil code provisions on human relations also include the duty of every person to respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. 22
A society which holds that egalitarianism, non-violence, consensualism, mutuality and good faith are basic to any human interaction is justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles. 23 Speech which degrades the name, reputation or character of persons is offensive and contributes to a process of moral desensitization. Free speech is not an excuse for subjecting anyone to the degrading and humiliating message inherent in indecent, profane, humiliating, insulting, scandalous, abusive or offensive statements and other forms of dehumanizing speech.
Right of parents to develop the moral
Many Filipino homes have television sets. Children have access to television and, in many cases, are unsupervised by parents. With their impressionable minds, they are very susceptible to the corrupting, degrading or morally desensitizing effect of indecent, profane, humiliating or abusive speech.
FCC v. Pacifica Foundation 24 elaborates:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message, ["Fuck the Draft"], 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 that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. 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. 25
Parental interest in protecting children from exposure to indecent, scandalous, insulting or offensive speech must be supported by the government through appropriate regulatory schemes. Not only is this an exercise of the State's duty as parens patriae, it is also a constitutionally enshrined State policy. 26 In this connection, the MTRCB is mandated by law to classify television programs. In particular, a "G" rating indicates that, in its judgment, a particular program is suitable for all ages and without "anything unsuitable for children and minors and may be viewed without adult guidance or supervision". 27 A "PG" rating means that, in the judgment of the MTRCB, parental guidance is suggested as it "may contain some adult material [which] may be permissible for children to watch under the guidance and supervision of a parent or an adult". 28
Loud and public indecent or offensive speech can be reasonably regulated or even prohibited if within the hearing of children. The potency of this rule is magnified where the same speech is spoken on national prime-time television and broadcast to millions of homes with children present and listening. 29
Moreover, children constitute a uniquely captive audience. 30 The Constitution guarantees a society of free choice. 31 Such a society presupposes the capacity of its members to choose. 32 However, like someone in a captive audience, a child is not possessed of that full capacity for individual choice. 33 Because of their vulnerability to external influence, not only are children more 'captive' than adults in the sense of not being as able to choose to receive or reject certain speech but they may also be harmed more by unwanted speech that is in fact received. 34 DIETcC
Taken in the context of the constitutional stature that parental authority receives and given that the home is the domain for such authority, the government is justified in helping parents limit children's access to undesirable materials or experiences. 35 As such, the government may properly regulate and prohibit the television broadcast of indecent or offensive speech.
Right to privacy
Protecting the privacy of the home is a compelling government interest. Carey v. Brown 36 emphatically declared that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society". 37
Broadcast indecency is sinister. It has the capacity to intrude into the privacy of the home when least expected. Unconsenting adults may tune in a station without warning that offensive language is being or will be broadcast. 38
Pacifica Foundation has this to say on the matter:
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 [free speech] rights of an intruder. 39
The right to privacy is intimately tied to the right to dignity which, in turn, hinges on individual choice. 40 Thus, in the context of broadcast indecency, the dominant constitutional principle at work is not free expression as indecency in and of itself has little or no value and is not protected. 41 Instead, the key constitutional principle involves privacy, dignity and choice. No one has the right to force an individual to accept what they are entitled to exclude, including what they must listen to or view, 42 especially in the privacy of the home. If a person cannot assert his authority at home, his self-worth is diminished and he loses a part of his sense of dignity. 43 His inability to make personal decisions is simply the consequence of having no right of choice in what is supposed to be his private sanctuary.
Basic Principle of Human Relations
The exercise of the right to broadcast touches upon and inevitably clashes with various rights and interests of the viewing public. Public interest, the ideal end of broadcast media, is entirely different from what usually interests the public which is the common fare of everyday programming. 44
The objective of laws is to balance and harmonize as much as possible those competing and conflicting rights and interests. For amidst the continuous clash of interests, the ruling social philosophy should be that, in the ultimate ideal social order, the welfare of every person depends upon the welfare of all. 45
Law cannot be given an anti-social effect. 46 A person should be protected only when he acts in the legitimate exercise of his rights, that is, when he acts with prudence and good faith, not when he acts with negligence or abuse. 47 The exercise of a right ends when the right disappears and it disappears when it is abused, especially to the prejudice of others. 48 The mask of a right without the spirit of justice which gives it life is repugnant to the modern concept of law. 49
As applied to the right to broadcast, the broadcaster must so use his right in accordance with his duties as a public trustee and with due regard to fundamental freedoms of the viewers. The right is abused when, contrary to the MTRCB rules and regulations, foul or filthy words are mouthed in the airwaves.
Someone who utters indecent, scandalous, insulting or offensive words in television is a proverbial pig in the parlor. Public interest requires that he be reasonably restrained or even removed from that venue. Nonetheless, the no-pig-in-the-parlor rule does not mean that the government will be allowed either to keep the pig from enjoying life in its pen or to apply the rule to non-pigs attempting to enter the parlor. 50
Free speech in broadcast media is premised on a marketplace of ideas that will cultivate a more deliberative democracy, not on a slaughterhouse of names and character of persons or on a butchery of all standards of decency and propriety.
The confluence and totality of the fundamental rights of viewers 51 and the proscription on abuse of rights significantly outweigh any claim to unbridled and unrestrained right to broadcast speech. These also justify the State in undertaking measures to regulate speech made in broadcast media including the imposition of appropriate and reasonable administrative sanctions.
State Regulation of Broadcast
The MTRCB is the agency mandated by law to regulate television programming. In particular, it has been given the following powers and functions under its charter, PD 52 1986:
Section 3. Powers and Functions. — The BOARD shall have the following functions, powers and duties:
(a) To promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives, including guidelines and standards for production, advertising and titles. Such rules and regulations shall take effect after fifteen (15) days following their publication in newspapers of general circulation in the Philippines;
xxx xxx xxx
(c) To approve or disapprove, delete objectionable portions from and/or prohibit the . . . production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime, such as but not limited to: HACaSc
xxx xxx xxx
(vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;
xxx xxx xxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
e) To classify motion pictures, television programs and similar shows into categories such as "G" or "For General Patronage" (all ages admitted), "P" or "Parental Guidance Suggested", "R" or "Restricted" (for adults only), "X" or "Not for Public Viewing", or such other categories as the BOARD may determine for the public interest;
xxx xxx xxx
(k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act, and to perform such other related duties and responsibilities as may be directed by the President of the Philippines. (emphasis supplied)
The grant of powers to the MTRCB under Section 3 of PD 1986 does not categorically express the power to suspend a television program or a host thereof that violates the standards of supervision, regulation and classification of television programs provided under the law. Nonetheless, such silence on the part of the law does not negate the existence of such a power.
First, a general grant of power is a grant of every particular and specific power necessary for the exercise of such general power. 53 Other than powers expressly conferred by law on them, administrative agencies may lawfully exercise powers that can be reasonably inferred in the wordings of the enabling law. 54
To begin with, Section 3 (d) of PD 1986 explicitly gives the MTRCB the power to supervise and regulate the television broadcast of all television programs. Under Section 3 (e) the MTRCB is also specifically empowered to classify television programs. In the effective implementation of these powers, the MTRCB is authorized under Section 3 (a) "[t]o promulgate such rules and regulations as are necessary or proper for the implementation of [PD 1986]". Finally, under Section 3 (k), the MTRCB is warranted "[t]o exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of [PD 1986]".
Clearly, the law intends to give the MTRCB all the muscle to carry out and enforce the law effectively. In consonance with this legislative intent, we uphold the implied and necessary power of the MTRCB to order the suspension of a program or a host thereof in case of violation of PD 1986 and rules and regulations that implement it.
Second, the grant of a greater power necessarily includes the lesser power. In eo quod plus sit, semper inest et minus.
The MTRCB has the power to cancel permits for the exhibition or television broadcast of programs determined by the said body to be objectionable for being "immoral, indecent, contrary to law or good customs . . . ." 55 This power is a power to impose sanctions.
A "sanction" in relation to administrative procedure is defined as follows:
the whole or part of a prohibition, limitation or other condition affecting the liberty of any person; the withholding of relief; the imposition of penalty or fine; the destruction, taking, seizure or withholding of property; the assessment of damages, reimbursement, restitution, compensation, cost, charges or fees; the revocation or suspension of license; or the taking of other compulsory or restrictive action. 56 (emphasis supplied)
The MTRCB's power to cancel permits is a grant of authority to permanently and absolutely prohibit the showing of a television program that violates MTRCB rules and regulations. It necessarily includes the lesser power to temporarily and partially prohibit a television program that violates MTRCB rules and regulations by suspending either the showing of the offending program or the appearance of the program's offending host.
Third, broadcasters are public trustees. Hence, in a sense, they are accountable to the public like public officers. Public accountability imposes a three-fold liability, criminal, civil and administrative. As such, the imposition of suspension as an administrative penalty is justified by the nature of the broadcaster's role vis-Ã -vis the public.
Finally, the infraction of MTRCB rules and regulations through the showing of indecent, scandalous, insulting or offensive material constitutes a violation of various fundamental rights of the viewing public, including the right of every person to dignity; the right of parents to develop the moral character of their children; the right of the youth to the promotion and protection by the State of their moral well-being and the right to privacy.
Equity will not suffer a wrong to be without a remedy. Ubi jus ibi remedium. Where there is a right, there must be an effective remedy. While civil damages may be awarded to the particular person who is the object of indecent, scandalous, insulting or offensive material and imprisonment or fine may be imposed to ensure the State's interest in enforcing penal laws, these remedies fail to address the violation of the fundamental rights of the viewing public. Yet their interest is supposed to be of paramount importance.
Clearly, therefore, in case of violation of PD 1986 and its implementing rules and regulations, it is within the authority of the MTRCB to impose the administrative penalty of suspension to the erring broadcaster. A contrary stance will emasculate the MTRCB and render illusory its supervisory and regulatory powers, make meaningless the public trustee character of broadcasting and afford no remedy to the infringed fundamental rights of viewers. HIEAcC
No Grave Abuse of Discretion
I have so far focused my discussion on the abstract, the theoretical foundations and limitations of free speech in broadcast media. I will now discuss the application of these concepts on petitioner's case.
The petitions should have been dismissed at the outset for being premature. Petitioner did not file a motion for reconsideration of the order preventively suspending Ang Dating Daan for 20 days as well as of the decision suspending petitioner for three months. As a rule, a motion for reconsideration is indispensable before resort to the special civil action for certiorari to afford the court or tribunal the opportunity to correct its error, if any. 57
Moreover, the petition in G.R. No. 165636 (assailing the MTRCB decision suspending petitioner for three months) could have been denied from the start as it was an improper remedy. Not only did petitioner fail to file a motion for reconsideration, he also neglected to file an appeal. Recourse to petitions for certiorari and prohibition is proper only where there is no appeal or any other plain, speedy and adequate remedy available. 58 In this case, petitioner had the remedy of appeal. His failure to file the requisite appeal proscribed this petition and rendered the decision of the MTRCB final and executory. 59
In any event, the MTRCB did not commit a grave abuse of discretion when it rendered its decision. On the contrary, the decision was proper as it was supported by both the facts and the law.
Grave abuse of discretion is such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. 60 In this case, petitioner failed to show any capriciousness, whimsicality or arbitrariness which could have tainted the MTRCB decision.
Profanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth. 61 Epithets that convey no ideas capable of being true or false are worthless in the marketplace of ideas. 62 Even the "slight social value" of indecency is "outweighed by the social interests in order, morality, the training of the young and the peace of mind of those who hear and see". 63 Moreover, indecency and profanity thwart the marketplace process because it allows "little opportunity for the usual process of counter-argument". 64
The utterances which led to the suspension of petitioner from appearing in the show Ang Dating Daan were indisputably indecent and offensive considering the circumstances surrounding it. In particular, petitioner called private respondent Michael M. Sandoval "demonyo", the personification of evil, twice. He also called Sandoval "gago" (or idiot) once in the portion of the show subject of the complaint against him. Immediately before that, however, the transcript of the August 10, 2004 program of Ang Dating Daan reveals that he had already hurled the same epithet at least five times against Sandoval. Worse, he uttered the patently offensive phrase "putang babae" in a context that referred to the sexual act four times. The repetitive manner by which he expressed the indecent and offensive utterances constituted a blatant violation of the show's classification as "G" rated.
Another thing. Petitioner's use of the pejorative phrase "putang babae" was sexist. The context of his statement shows that he meant to convey that there is a substantial difference between a woman and a man engaged in prostitution, that a female prostitute is worse than a male prostitute. As such, not only did petitioner made degrading and dehumanizing remarks, he also betrayed a very low regard for women.
Even the most strained interpretation of free speech in the context of broadcast media cannot but lead to the conclusion that petitioner's statements were indecent and offensive under the general standard of contemporary Filipino cultural values. Contemporary values of the Filipino community will not suffer the utterances of petitioner in the presence of children. Using contemporary values of the Filipino community as a standard, it cannot be successfully denied that the statements made by petitioner transcended the bounds of decency and even of righteous indignation.
Nonetheless, where fundamental freedoms are involved, resort to the least restrictive approach is called for. Steps should be taken and sanctions should be imposed with an abundance of caution and with the least possible collateral damage. No measure that is more than what is necessary to uphold public interest may be taken. In this context, the least restrictive approach was that taken by the MTRCB, to suspend the offending host rather than the show (in which case the other innocent hosts would have been unduly penalized as well). The lesser power of suspending the offending host should be preferred over the greater power of suspending the show and all its hosts regardless of who uttered the indecent and offensive remarks.
Under the circumstances obtaining in this case, therefore, and considering the adverse effect of petitioner's utterances on the viewers' fundamental rights as well as petitioner's clear violation of his duty as a public trustee, the MTRCB properly suspended him from appearing in Ang Dating Daan for three months.
Furthermore, it cannot be properly asserted that petitioner's suspension was an undue curtailment of his right to free speech either as a prior restraint or as a subsequent punishment. Aside from the reasons given above (re the paramountcy of viewers rights, the public trusteeship character of a broadcaster's role and the power of the State to regulate broadcast media), a requirement that indecent language be avoided has its primary effect on the form, rather than the content, of serious communication. 65 There are few, if any, thoughts that cannot be expressed by the use of less offensive language. 66
A Final Word
There is a need to preserve the delicate balance between the inherent police power of the State to promote public morals and enhance human dignity and the fundamental freedom of the individual to speak out and express himself. In this case and in the context of the uniqueness of television as a medium, that balance may not be tilted in favor of a right to use the broadcast media to rant and rave without due regard to reasonable rules and regulations governing that particular medium. Otherwise, the Court will promote (wittingly or unwittingly) the transformation of the "boob tube" to a "boor tube" dominated by rude and unmannerly shows and personalities that totally demean the precious guarantee of free speech and significantly erode other equally fundamental freedoms. aADSIc
To hold that the State, through the MTRCB, is powerless to act in the face of a blatant disregard of its authority is not a paean to free speech. It is a eulogy for the State's legitimate exercise of police power as parens patriae to promote public morals by regulating the broadcast media. It is an indictment of long and deeply held community standards of decency and civility, an endorsement of indecorousness and indecency and of everything that is contrary to basic principles of human relations.
Accordingly, I vote to DISMISS these petitions.
TINGA, J., concurring:
While I concur in the ponencia, I write separately to offer some observations on the dissent of our esteemed colleague, Justice Antonio T. Carpio as well as to briefly explain my views.
The Bill of Rights does not forbid abridging speech, but abridging the freedom of speech. 1 The view that freedom of speech is an absolute freedom has never gained currency with this Court, or the United States Supreme Court, which both have carved out exceptions relating to unprotected speech, such as obscenity. Constitutionally protected freedom of speech is narrower than an unlimited license to talk. 2 General regulatory statutes not intended to control the content of speech but incidentally limiting its unfettered exercise have not been regarded as the type of law proscribed by the Bill of Rights, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. 3
Justice Carpio dissents as he feels that the three-month suspension of petitioner's TV program constitutes an unconstitutional prior restraint on freedom of expression. However, said suspension is, much more so, a form of subsequent punishment, levied petitioner in response to the blatantly obscene remarks he had uttered on his television program on the night of 10 August 2004. The primary intent of the suspension is to punish petitioner for such obscene remarks he had made on the broadcast airwaves, and not to restrain him from exercising his right to free expression.
That the assailed subsequent punishment aside from being such also takes on the character of a prior restraint (unlike, e.g., if the punishment levied is a fine) somewhat muddles the issue. But to better clarify the point, let us assume instead that petitioner made the same exact remarks not on television, but from his pulpit. The MTRCB learns of such remarks, and accordingly suspends his program for three months. In that scenario, neither the MTRCB nor any arm of government has the statutory authority to suspend the program based on the off-camera remarks, even if such action were justified to prevent petitioner from making similar remarks on the air. In that scenario, the suspension unmistakably takes on the character of prior restraint, rather than subsequent punishment.
It is clear that the MTRCB is vested under its organic law with ample powers to impose prior restraint on television programs. Section 7 of Pres. Decree No. 1986 declares it unlawful to air any television program unless it had been duly reviewed and approved by the MTRCB. As emphasized in the recent case of MTRCB v. ABS-CBN, 4 penned by Justice Angelina Sandoval-Gutierrez, such power of review and prior approval of the MTRCB extends to all television programs — even news and public affairs programs — and is valid notwithstanding the constitutional guarantee to free expression. Moreover, in conducting its prior review of all television programs, the MTRCB has the power to approve or disapprove, or to delete "objectionable" portions of such television programs submitted for its approval, based on the standards set forth in Section 3 of Pres. Decree No. 1986.
Under this review and approval schematic established by Pres. Decree No. 1986, all broadcast networks labor under a regime of prior restraint before they can exercise their right to free expression by airing the television programs they produce. If the MTRCB were indeed absolutely inhibited from imposing "prior restraint", then the entire review and approval procedure under Pres. Decree No. 1986 would be unconstitutional. I am not sure whether Justice Carpio means to imply this.
I do take it though that Justice Carpio wishes to bring forth as a core issue whether or not the MTRCB can impose the penalty of suspension in a television program, an issue which necessarily takes for granted that the program had violated the matters enumerated as objectionable under Section 3 of Pres. Decree No. 1986. Justice Carpio, to my understanding, believes that the MTRCB can never suspend a program despite its "guilt" because suspension is a prohibited prior restraint on future speech. Following that line of thought, the imposition of a fine in lieu of suspension would be permissible because such fine would not take the form of prior restraint, even if it may constitute subsequent punishment.
Curiously, Presidential Decree No. 1986 does not expressly confer on the MTRCB the power to levy a penalty other than imprisonment for between three months and a day to a year, a fine of between fifty to one hundred thousand pesos, and the revocation of the license of the television station. 5 The less draconian penalties, such as suspension, are provided for instead in the implementing rules of the MTRCB, particularly Chapter XII, Section 1 thereof. The ponencia justifies the adoption of such penalties not specified in Pres. Decree No. 1986 through the conferment by the same law on the MTRCB of the authority "to supervise [and] regulate . . . television broadcast of all . . . television programs" 6 and "[t]o exercise such power and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act". 7
I have no doubt that suspending the petitioner will inhibit his speech, even if such ban is enforced in the name of subsequent punishment rather than prior restraint. Such a penalty must endure strict scrutiny since it is related to the exercise of that fundamental guarantee of free speech. However, it is extremely material to my view the fact that the obscene utterances were made on television, and that the penalty imposed relates to the right of petitioner to broadcast on television. If the current concern pertained to speech in a different medium, such as the print media or the Internet, then I would be much less tolerant over the penalties imposed corresponding to the exercise of speech. Yet the fact is, broadcast media enjoys a lesser degree of protection than expression in other mediums, owing to the unique nature of broadcasting itself. ETDaIC
Petitioner's program is broadcast over UNTV-37, which operates from the UHF band. All of broadcasting, whether radio or television, utilizes the airwaves, or the electromagnetic spectrum, in order to be received by the listener or viewer. The airwaves, which are a scarce and finite resource, are not susceptible to physical appropriation, and therefore owned by the State. 8 Each station relies on a particular bandwidth assignation which marks their slot on the spectrum where it can constantly broadcast its signal. Without government regulation, as was the case in the early days of radio in the United States, stations desiring to broadcast over the airwaves would not have a definitive right to an assigned bandwidth, and would have to fend off competing broadcasters who would try to interfere or co-opt each others signals. Thus, government regulation became a necessary evil, with the government taking the role of assigning bandwidth to individual broadcasters. However, since the spectrum is finite, not all stations desiring to broadcast over the airwaves could be accommodated. Therefore, in exchange for being given the privilege by the government to use the airwaves, station owners had to accede to a regime whereby those deemed most worthy by the government to operate broadcast stations would have to accede to regulations by the government, including the right to regulate content of broadcast media.
These limitations of scarcity are peculiar to broadcast only, and do not apply to other mediums such as print media and the Internet. For that reason, the United States Supreme Court 9 has acknowledged that media such as print and the Internet enjoy a higher degree of First Amendment protection than broadcast media. If the same utterances made by petitioner were made instead in print media, it would be difficult to justify on constitutional grounds any punishment that proscribed his exercise of free speech, even if his language might run afoul of the relevant anti-obscenity laws. But because these were made on broadcast television, the inherent and idiosyncratic ability of the State to regulate content of broadcast media would justify corresponding duly legislated sanctions. Moreover, since the ultimate consideration of the State in regulating broadcast media is whether such broadcaster should be entitled to use the broadcast spectrum in the first place, a sanction corresponding to suspension from the airwaves which the State owns, is commensurate, even if it may not be so in the case of other media where the State has no inherent regulatory right.
Indeed, nobody has the unimpedable right to broadcast on the airwaves. One needs to secure a legislative franchise from Congress, and thereafter the necessary permits and licenses from the National Telecommunications Commission before a single word may be broadcast on air. Moreover, especially since they are regulated by the State, broadcasters are especially expected to adhere to the laws of the land, including Pres. Decree No. 1986. And under the said law, the legislative branch had opted to confer on the MTRCB the power to regulate and to penalize television broadcast stations in accordance with the terms of the said law.
It is a legitimate question for debate whether the proper sanction on petitioner should be suspension from broadcast, or a less punitive penalty such as a fine. Yet Justice Carpio is proceeding from the premise that suspension can never be an appropriate penalty the MTRCB can impose, because it is a prior restraint. On the other hand, I believe that suspension is a penalty that is part and parcel, if not particularly appropriate to, the inherent regulatory power of the State over broadcast media. After all, the right to broadcast involves the right to use the airwaves which the State owns, and if the broadcaster offends any of the legislated prerogatives or priorities of the State when in comes to broadcasting, suspension is an apt penalty.
With respect to the merits of these petitions, my views are simply this. There is no question that petitioner's remarks are inherently obscene, and certainly potential cause for a libel suit. These remarks were made on broadcast media, which the State inherently has the right to regulate. The State has the right to prevent the sort of language used by petitioner on the airwaves that it owns, as well as the right to punish broadcasters who do make such remarks. Pres. Decree No. 1986, as it stands, accommodates these particular concerns and imposes corresponding sanctions which I deem appropriate on broadcasters whose transgressions are as grave as that of petitioner. While I may have serious reservations on several other aspects of Pres. Decree No. 1986, a relic of the dictatorship era, that law as applied to this particular case operates in a way that I believe is constitutionally permissible.
PUNO, C.J., dissenting:
As a mature society, we have to come to terms with our conceptions of indecent speech, as it is a reality in our midst and it will not go away. 1 The case at bar confronts the Court with the question of whether regulation as a medicine for indecent speech is poison to the freedom of expression guaranteed by our Constitution.
In its September 27, 2004 Decision, public respondent Movie and television Review and Classification Board (MTRCB) suspended the petitioner for three months from his television program, Ang Dating Daan, for uttering the following words on said show:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael; masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, dito kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae iyan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito. 2
Petitioner contends that the decision of the MTRCB runs afoul of his freedom of speech.
I shall focus my disquisition on the categorization of the subject speech as "indecent speech" conveyed through the medium of television broadcast and on the applicable test for its regulation, as this category of speech has not previously figured in our "freedom of speech" jurisprudence.
Let me begin by discussing the authority cited by the ponencia, 3 Federal Communications Commission (FCC) v. Pacifica Foundation, 4 the landmark U.S. Supreme Court decision on regulation of indecent speech in broadcast. In Pacifica, the U.S. Supreme Court was confronted with FCC regulation of a radio broadcast of "filthy Words", a 12-minute monologue of satiric humorist George Carlin. 5 Carlin recorded the monologue before a live audience in a California theater. He started 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 then went on to list those words and said them over and over again in a variety of colloquialisms. The transcript of the recording shows frequent laughter from the audience. 6
At about 2:00 min. on Tuesday, October 30, 1973, a New York radio station, owned by Pacifica Foundation, broadcast the "Filthy Words" monologue. A few weeks later, the FCC received a complaint letter from a man, who stated that he had heard the broadcast while driving with his young son. He wrote 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". 7
Specifically, at issue in Pacifica was Carlin's use of seven curse words — "shit, piss, fuck, cunt, cocksucker, motherfucker, and tits". 8 The U.S. Supreme Court did not characterize the utterance as unprotected obscene speech. 9 Instead it characterized the seven words as indecent speech according to the definition given by the FCC: "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience". 10 Rejecting the argument of Pacifica, the US. Supreme Court held that prurient appeal, an element of obscene speech, was not a requisite for a finding of indecent broadcast speech. 11
Noting that there were two statutes prohibiting "obscene, indecent, or profane language by means of radio communications", the U.S, High Court held that the FCC could regulate the subject indecent speech because of two special features of the broadcast medium: (1) it is a "uniquely pervasive" medium, capable of invading the privacy of the home; and (2) it is "uniquely accessible to children". 12 Holding that these characteristics warranted broadcast receiving "the most limited First Amendment protection," 13 the U.S. Supreme Court upheld the FCC finding that the seven words in the Carlin monologue were indecent, and that the FCC could constitutionally regulate indecent speech under a context-based standard, 14 i.e., that the indecent words were deliberately and repeatedly said in a radio program that was broadcast at 2:00 p.m. when children were in the audience. HIESTA
The U.S. Supreme Court emphasized the importance of the context of its ruling, viz.:". . . (T)his monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. 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". 15 In conclusion, the U.S. High Court expressed caution on the narrowness of its ruling, viz.:
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, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. 16 (emphases supplied) (footnote omitted)
After Pacifica, the FCC pursued a lax enforcement policy of indecent speech with only the seven filthy words in the Carlin monologue being considered as actionable indecency. 17 In 1987, however, the FCC announced that determinations of indecency would be made without regard for whether they contained one of the "seven filthy words" and would instead be evaluated using the definition in Pacifica: "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience". 18 In Action for Children's Television v. FCC, 19 the FCC also settled on a policy in which such indecency could be sanctioned if aired within the period between 6:00 a.m. and 10:00 p.m. when children were presumptively in the audience, but could be broadcasted during the "safe harbor" period between 10:00 p.m. and 6:00 a.m. 20 As in Pacifica, the FCC likewise considered "deliberate and repetitive use" of offensive words a prerequisite for finding them actionable when the words were mere expletives not describing sexual or excretory functions. 21
The FCC policy saw a significant change beginning in 2003. During the 2003 live broadcast of the Golden Globe Awards, Bono, a singer in the popular band U2, exclaimed in his acceptance speech for best original song award, "(T)his is really, really fucking brilliant". 22 The FCC received hundreds of complaints that the "F-word" was obscene and indecent, but the FCC Enforcement Bureau initially ruled that because of the fleeting use of the word and the context — it was used as an intensifier rather than a sexual description — it was not an actionable indecency. 23 Succumbing to congressional pressure, however, the FCC reversed the Bureau's decision. 24 It held that "given the core meaning of the 'F-word', any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition". 25 The FCC thus ruled that Bono's specific use of the "F-word", even without repetition, met its definition of "patently offensive" as measured by contemporary community standards for the broadcast medium, 26 and put broadcasters on notice that they could be made liable in the future for even "fleeting" expletives such as that in the Bono Incident. 27
Following the Golden Globe decision, the FCC found two other television broadcast incidents indecent. In the Billboard Music Awards, Cher in 2002 and Nicole Richie in 2003 each used a variant of the word "fuck"; and Richie said "shit" in reference to cow excrement in her reality show, "The Simple Life". 28 These FCC decisions were questioned and eventually found their way to the U.S. Supreme Court after the Second Circuit Court of Appeals ruled that the FCC had been arbitrary and capricious in applying the "fleeting standard" without sufficient notice or explanation after years of practice to the contrary. 29 These cases are pending decision in the U.S. Supreme Court. On November 4, 2008, they were heard on oral argument. 30
The checkered history of indecent broadcast speech regulation in the U.S., after the Court concluded its decision in Pacifica, leaves no doubt that the Pacifica Court provided not a beginning to the end of the debate on regulation of indecent broadcast speech, but merely an end to the beginning. 31 It thus cannot be gainsaid that caution ought to be exercised in adopting doctrines enunciated in Pacifica lock, stock and barrel, as the U.S. High Court explicitly stated that its ruling was peculiar to the facts and circumstances of the case. Pacifica ruled that indecent speech, even in broadcast, does not fall within the same category of unprotected obscene speech. This is a good place to begin the analysis of the regulation of the subject speech in the case at bar, as the categorization of the speech will bear upon the validity of its regulation. HEcSDa
Protected and unprotected speech
Our first task in assessing the validity of speech regulation is to categorize whether the subject speech falls within the domain of protected speech or under the established categories of unprotected speech. The free speech clause supports the proposition that truth will emerge from a "free trade of ideas" through the "competition of the market". 32 In this free marketplace of ideas, any harm that speech may cause can be avoided or addressed by more speech; 33 hence, speech should be protected and not suppressed or punished. Aside front being a tool to ascertain truth, free speech is also valuable in a democracy to assure individual self-fulfillment and participation by the people in social and political decision-making, and to maintain a balance between stability and change. 34 However, there are recognized categories of speech that are harmful — such harm not curable by more speech — and are thus not protected by the free speech clause or classified as unprotected speech.
Categories of unprotected speech cover "utterances (that) are no essential part of any exposition of ideas (and) of . . . slight social value as a step to truth". 35 They are categories of speech determined wholesale and in advance to be harmful. Their prevention and punishment have never been thought to raise constitutional problems. 36 Being of minimal or no value, their regulation does not require the application of the clear and present danger test or other balancing tests that weigh competing values or interests. Speech, however, may also be said to be unprotected if, after applying a balancing test to a traditionally protected speech, the government interest being pursued by a regulation outweighs the interest in exercising the right to free speech. This type of unprotected speech, however, is determined by using a case-to-case balancing test as differentiated from unprotected speech that falls under established categories.
Unprotected speech categories include defamation, 37 "fighting words" 38 ,and obscenity. 39 Let me make short shrift of these categories of unprotected speech, as private respondents assert that the subject speech constitutes defamation and obscenity 40 and public respondents claim that it qualifies as "fighting words", 41 while the ponencia also classifies the subject speech as obscene. 42
I submit that the subject speech does not fall under any of the above categories of unprotected speech.
First, defamation. At the outset, it should be stated that private respondent Michael Sandoval is a public figure. "Public figure" refers to "a person who, by his accomplishments, fame, or 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'. He is, in other words, a celebrity . . . to be included in this category are those who have achieved same 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". 43 By virtue of his profession as a minister of Iglesia ni Cristo and a regular host of the television program Ang Tamang Daan, private respondent Sandoval qualifies as a public figure whose actions, character and reputation are of legitimate interest to the public. The content of the subject speech pertains to private respondent Sandoval's alleged detestable conduct of splicing a video and airing it in his television program, Ang Tamang Daan — the video presenting petitioner asking for help from his congregation to shoulder the expenses required by his ministry in the amount of 37 trillion pesos instead of the true amount of 3.6 million pesos. 44 In accord with U.S. and Philippine jurisprudence, for the subject speech to fall within this unprotected category of defamatory speech, private respondent Sandoval has the burden of proving that such speech was made with actual malice or with knowledge that it was false or with reckless disregard of whether or not it was false. 45 Private respondent has failed to discharge this burden.
Second, "fighting words". These are "words which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." 46 In Chaplinsky v. New Hampshire, 47 the U.S. Supreme Court held that a state may forbid the use in a public place of words that would be likely to cause an addressee to fight. Accordingly, it found that Chaplinsky's calling the city marshall a "damned fascist" and "damned racketeer" qualified as "fighting words". It is not sufficient, however, for the speech to stir anger or invite dispute, as these are precisely among the functions of tree speech. 48 In the case at bar, as public respondent has not shown that the subject speech caused or would be likely to cause private respondent Sandoval to fight petitioner, the speech cannot be characterized as "fighting words". Public respondents' statement that the subject speech constitutes "fighting words" is a mere conclusion bereft of well-grounded premises, viz.:
Finally, to erase any lingering doubt on the propriety of the MTRCB's action vis-a-vis petitioner's case, it is respectfully submitted that the words used by petitioner in his program Ang Dating Daan, were unmistakable provocative and indecent. They were provocative because "their very utterance inflict injury or tend to incite an immediate breach of the peace". This can be deduced from the fact that they were directed at a particular person, i.e., respondent Michael Sandoval of the rival Iglesia ni Cristo, whose enraged feeling could have spurred immediate retaliation and violence. Acrimonious word-wars among religious advocates, as history would show, are among the provocateurs of vicious reactions. As such, petitioner's expressions fall within certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. In constitutional law, they are referred to as "fighting words" and are definitely subject to the MTRCB's power under Sec. 3 (c) of P.D. 1986. 49
Third, obscenity. The test to determine obscene speech was laid down in the U.S. case Roth v. United States 50 and substantially adopted in the Philippine case Gonzales v. Kalaw, 51 viz.: "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." In a later U.S. case, Miller v. California, 52 the test was modified to give room for serious value to accompany the speech. Thus, the Miller test is three-pronged: (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Whether the Roth or the Miller test is used, at core, the test is whether the material appeals to prurient interest.
While the subject speech speaks of or suggests sexual acts, a consideration of the context of the speech derived from a reading of the transcripts 53 of the August 10, 2004 episode of Ang Dating Daan would easily yield the conclusion that the subject speech does not appeal to prurient interest. Petitioner admits having uttered the subject speech, but claims that it was provoked by the "detestable conduct of the ministers of Iglesia ni Cristo who are hosting a television program entitled Ang Tamang Daan". Allegedly, as aforementioned. said ministers played a video in which petitioner was asking for help from his congregation to shoulder the expenses required by his ministry, but they spliced the video to make it appear that he was asking for contributions to pay 37 trillion pesos instead of the true amount of 3.6 million pesos. 54 As the subject speech, taken in context, does not appeal to prurient interest, I submit that the proposition that it is unprotected obscene Speech should be jettisoned. ATSIED
Instead, petitioner's utterance, "Yung putang babae ang gumagana lang doon yung ibaba", constitutes indecent speech according to the definition of the term in Pacifica. The utterance falls under the category of indecent speech that is protected depending on the context in which it is spoken as held in that case. In Cohen v. California, 55 the U.S. Supreme Court held that the words "Fuck the Draft" came within the purview of constitutionally protected speech as a political statement in a public place. In that case, Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words "Fuck the Draft". After entering the courtroom, he quietly took off his jacket and folded it. The evidence showed that no one in the courthouse was offended by his jacket. But when he left the courtroom, he was arrested and convicted of disturbing the peace and sentenced to 30 days in prison. The U.S. High Court rejected the argument that his speech would offend unwilling viewers and reversed his conviction.
Unlike in Cohen, however, the indecent speech in the case at bar was uttered in a television broadcast. This fact is crucial in determining the standard to regulate it. Let me thus focus on this fact.
Television broadcast as a medium of speech
In Joseph Burstyn, Inc. v. Wilson, 56 the U.S. Supreme Court emphasized that it had long recognized that each medium of expression presents special First Amendment 57 problems. It is also acknowledged that among all forms of communication, it is broadcasting that has received the most limited First Amendment protection. 58 The unique regulation of broadcast speech is accepted for at least two reasons as articulated by the Court in Eastern Broadcasting Corporation v. Dans, citing Pacifica,viz.:
First, broadcast media have established a uniquely pervasive presence in the lives of all citizens. Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. 59 (emphases supplied)
In Chavez v. Gonzales, 60 the Court acknowledged that broadcast media is subject to regulatory schemes including licensing, regulation by administrative bodies, and censorship not only in our country but also in other jurisdictions. We held, viz.:
The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm. 61 (emphases supplied)
In the Philippines, television broadcast is regulated by the MTRCB created under Presidential Decree (P.D.) No. 1986 issued in 1985.
Section 3 (b), (c), and (d) of the law, in relevant part, provides for the powers and duties of the MTRCB, viz.:
b) To screen, review and examine . . . television programs . . . for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export;
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being . . . indecent . . .
d) To classify motion pictures, television programs and similar shows into categories such as "G" or "For General Patronage" (all ages admitted), "P" or "Parental Guidance Suggested", "R" or "Restricted" (for adults only), "X" or "Not for Public Viewing", or such other categories as the BOARD may determine for the public interest. (emphases supplied)
Section 3 (a) of P.D. No. 1986 also authorizes the MTRCB "to promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives". The 2004 MTRCB Implementing Rules and Regulations provides for television classification under Section 2, viz.:
SEC. 2. Television Classification. — All television programs, motion pictures, and publicity/promotional materials for or pertaining to television broadcast are to be classified as GENERAL PATRONAGE ("G"); PARENTAL GUIDANCE ("PG"); and NOT FOR PUBLIC VIEWING ("X"). The BOARD may consider the time slot, purpose and venue of the program in determining the proper rating for it.
A. GENERAL PATRONAGE ("G") — Suitable for all ages. Material for television which, in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision.
B. PARENTAL GUIDANCE ("PG") — Parental guidance suggested. Material for television which, in the judgment of the BOARD, may contain some adult material but may be permissible for children to watch under the guidance and supervision of a parent or adult.
The "PG" classification advises parents to exercise parental responsibility in their children's viewing of the program. An advisory to the effect that the program requires Parental Guidance and the reason for such a classification (e.g. language, violence, etc.) shall be shown immediately before the opening credits of the particular television material classified as such. The phrase "Parental Guidance" shall be superimposed throughout the showing of the television material classified as such. (emphasis supplied)
With the acknowledged need for regulation of broadcast speech, let me now turn to the regulation specifically of indecent speech in television broadcast. DaAIHC
Indecent speech in television broadcast
In Chavez, the Court explained the distinction between content-neutral and content-based speech. Let me expound on this distinction, as it spells a difference in the tests to use for regulation.
A content-based regulation is based on the subject matter of the utterance or speech. It is the communicative impact of the speech or the reader's possible reaction to the ideas expressed that is being regulated. An example of a content-based regulation is a regulation prohibiting utilities from including, in monthly electric bills, inserts discussing the desirability of nuclear power or other political views, as the contents might inflame the sensibilities of the readers. It is irrelevant that the entire subject matter of nuclear power, and not just one particular viewpoint, is being regulated. To bring home the point, if the insert were blank or in an undecipherable language, it could not inflame the sensibilities of its readers because of its content and would thus not fall within the prohibition. 62 Typically, strict scrutiny is applied to content-based regulations of speech and requires that laws "be narrowly tailored to promote a compelling Government interest". 63 This test calls for "the least restrictive alternative" necessary to accomplish the objective of the regulation. 64 The test is very rigid because it is the communicative impact of the speech that is being regulated. The regulation goes into the heart of the rationale for the right to free speech; that is, that there should be no prohibition of speech merely because public officials disapprove of the speaker's views. 65 Instead, there should be a free trade in the marketplace of ideas, and only when the harm caused by the speech cannot be cured by more speech can the government bar the expression of ideas.
A content-neutral regulation, on the other hand, is merely concerned with the incidents of the speech; or merely controls the time, place or manner of the speech under well-defined standards, independent of the content of the speech. For example, a regulation forbidding the distribution of leaflets to prevent littering is a content-neutral regulation, since the harm sought to be prevented exists regardless of what information or content the leaflet contains. In fact, even a blank leaflet or a leaflet containing writings in undecipherable language can end up being littered and thus fall within the scope of the prohibition. 66 For content-neutral regulation, an intermediate test is employed, which requires that the regulation be narrowly drawn to pursue a substantial or significant government interest, provided that the regulation of the time, place, or manner of speech does not mask discrimination based on the communicative content of the speech. 67 The test is not as rigid as that used in content-based regulation, as the regulation does not seek to regulate the communicative impact of the speech, but only its incidents of time, place, or manner of expression.
The Pacifica Court, however, did not articulate the standard of review it was employing nor did it identify a compelling state interest in putting the FCC's content-based regulation under scrutiny. Neither did it conduct the typical weighing of the government interests and the narrowness of the means of achieving them. Nonetheless, it is clear that the Pacifica Court approved the governmental interest in protecting children and deemed regulation of broadcast speech an acceptable way to achieve that goal, at least in the specific circumstances of the case. Despite the regulation being content-based, it would appear that a less than strict scrutiny or intermediate scrutiny was acceptable to the U.S. High Court, considering the unique characteristics of broadcasting and the nature of the subject words in the Carlin monologue. The Court found that the "words offend for the same reasons that obscenity offends", 68 but "they are not entirely outside the protection of the First Amendment . . . [as] [s]ome uses of even the most offensive words are unquestionably protected". 69 An intermediate scrutiny of a content-based regulation such as that in Pacifica would require that the regulation further a substantial or significant government interest through means that are not more extensive than necessary to directly serve that interest. 70
It is my considered view that the characteristic of broadcasting that is decisive in the regulation of indecent broadcast speech is the risk of presence of children in the audience, considering the pervasiveness of broadcast media. Indeed, in Iglesia ni Cristo v. Court of Appeals, 71 the Court took note of the fact that "television is a medium that reaches even the eyes and ears of children". Hence, the FCC's concept of "indecent" on television as stated in Pacifica is a good guide for the Court to adopt: "[T]he concept 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." 72 The context is all-important. Thus, in Pacifica, "the FCC 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.'" 73 (emphasis supplied)
In the U.S., as shown in Pacifica in which the Court deemed as crucial the broadcast of Carlin's monologue at 2:00 p.m., "time of day" is used as a guide for assessing the risk of children being in the audience and "channeling" the speech. As aforementioned, the FCC has adopted a "safe harbor" period between 10:00 p.m. and 6:00 a.m. when indecent speech may be aired and has set the period between 6:00 a.m. and 10:00 p.m. for broadcast to be clear of indecent speech. In the Philippines, a classification or rating scheme is employed to determine the language suitable to the audience of a television program. Thus, the afore-quoted Section 2 of the 2004 MTRCB Implementing Rules and Regulations in relation to Section 3 (d) of P.D. No. 1986 provides that television programs with a "G" rating should "not contain anything unsuitable for children and minors" and "may be viewed without adult guidance or supervision". Petitioner's television program Ang Dating Daan is a "G"-rated program, 74 and as such, should conform to the standards of its classification. Petitioner does not challenge the "G" rating of his program. ASHaTc
As in Pacifica, the welfare of children and the state's performance of its parens patriae duty to take care of them constitute a substantial government interest in regulating indecent speech in television broadcast as provided under P.D. No. 1986. In Gonzales v. Katigbak,75 the Court took note that "television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown . . . It cannot be denied . . . that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young". As stated in Chapter 1, Section 5 of the MTRCB Rules and Regulations, the "review and classification system rests on the doctrine of PARENS PATRIAE".
With vulnerable and impressionable children and minors in the audience of a "G"-rated television program, I respectfully submit that the words "'Yung putang babae, ang gumagana lang doon yung ibaba" are not protected by the free speech clause. By Filipino community standards, the language is a patently offensive description of sexual activity. It expresses promiscuous sexual conduct of a prostitute, and indiscriminately expands the vocabulary and understanding — or misunderstanding — of impressionable children and minors. The language has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions. 76
The subject speech uttered by petitioner constitutes indecent speech unprotected in the particular context of a "G"-rated television program, which children and minors may be watching without adult guidance or supervision. Given the value of indecent speech and the harm it inflicts on children and minors in this context, this kind of speech is a category that falls outside the protection of the free speech clause. The harm done to children, the immediate expansion of their vocabulary to include indecent speech, cannot be cured by more speech. Thus, there is no room for the application of the clear and present danger test (or some other balancing test) to determine in each case (including the case at bar) whether "the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent". 77 There is a wholesale and advance determination that language characterized as indecent on a "G"-rated television broadcast is harmful and may be constitutionally proscribed. This narrow proscription is a unique content regulation (indecent content) using a context standard (when children and minors may be watching television unsupervised) and fashioned specifically for the unique, pervasive characteristic of television broadcast. The prohibition in this particular context is not more extensive than necessary to directly serve the government interest in protecting impressionable and vulnerable children in the audience. In cases involving this established category of unprotected indecent speech, what is crucial in determining whether a particular speech comes within the purview of the free speech clause is the characterization of the speech as falling within or outside of the category, and not the case-to-case balancing of interests.
Petitioner disputes the narrowness of the standards provided by Section 3 (c) of P.D. No. 1986 in prohibiting the subject speech. He questions the constitutionality of this provision as applied to him as shown by the following portions of his pleadings, viz.:
As applied to the circumstances attendant in the case at Bench, both Section 3(c) of P.D. No. 1986 and the challenged Decision and Order should be struck down as unconstitutional for being an undue restriction on the constitutionally-guaranteed right to religious speech and exercise and free speech and expression . . . 78
xxx xxx xxx
By saying that Sec. 3(c) of P.D. No. 1986 is unconstitutional as applied, Petitioner is precisely questioning the statute in its application to the case at Bench. 79
xxx xxx xxx
The cases at Bench involve subsequent punishment for certain words uttered by Petitioner in during (sic) the 10 August episode of his program Aug Dating Daan . . . .
By reason of the fact that it deals with the curtailment of most cherished freedoms, the standards governing subsequent punishment should be narrowly drawn so as not to unnecessarily censor legitimate speech, wither (sic) religious or non-religious. Section 3(c) of P.D. No. 1986, however, does not furnish a narrowly drawn standard for subsequent punishment. As such, it should be struck down as unconstitutional. 80 (emphases supplied)
Petitioner's argument — that Section 3 (c) of P.D. No. 1986, as applied to him, fails to furnish a narrowly drawn standard for subsequent punishment — does not hold water. Let me put under the lens of scrutiny these constitutional concepts of "as applied" challenge to the constitutionality of the subject law and "subsequent punishment" of speech.
"Facial" and "as applied" challenges
A challenge to the constitutionality of a statute may be "as applied" or "facial". An "as applied" challenge is an assertion that a statute cannot constitutionally be applied to a litigant under the particular facts of a case. 81 A statute may be invalid as applied to one state of facts and yet valid as applied to another. 82 Future litigation under the statute is still possible, and litigants may argue that their facts are similar to, or unlike, the facts under which the court upheld the "as applied" challenge to the statute. 83 An "as applied" decision allows the law to operate where it might do so constitutionally and vindicates a claimant who shows that his own speech is protected by the free speech clause and cannot be burdened in the manner attempted. 84
On the other hand, a "facial" challenge disputes the constitutionality of a statute as written or on its face. When a court upholds a facial challenge to a statute, the statute is held as invalid or void on its face; and future attempts at enforcement under any circumstance are futile, 85 unless only parts of a statute are facially invalidated. 86 Thus, rather than excising invalid applications of a statute one by one as they arise, the facial challenge invalidates the statute itself and puts it up to the legislature for redrafting. 87 Facial challenges include disputing the significance or weight of the state interest pursued by the speech regulation and the fitness of the means used to pursue it, or asserting overbreadth of the statute, or claiming that the statute is void for vagueness. 88
In sum, a person charged with violating a statute has the choice of one or both of two substantive defenses: (1) facial challenge, i.e., that the statute is unconstitutional as written; and (2) as-applied challenge, i.e., that the conduct involved is not constitutionally punishable. Thus, it could be contended that a statute outlawing obscenity, for example, is so worded as to unconstitutionally embrace protected expression. It could also be contended that, even if the statute is properly worded, the expression sought to be punished is, in fact, constitutionally protected or otherwise beyond the reach of the statute. 89 "As applied" and "facial" challenges refer to litigation choices and the effects of the decision of the court. 90
Petitioner's assertion that Section 3 (c) of P.D. No. 1986 as applied to him is not sufficiently narrow fails to consider Section 3 (d) of this same law, which classifies his television program Ang Dating Daan as a "G"-rated program suitable for children and minors watching without adult guidance. As applied to his program and the subject speech, Section 3 (d), in conjunction with Section 3 (c), in fact, makes the proscription of indecent speech narrow, because the provision speaks of indecent speech unsuitable particularly to children and minors watching without adult guidance or supervision. As explained previously, in this particular context of the case at bar to which Section 3 (c) of P.D. No. 1986 is applied, indecent speech falls outside the protection of the free speech clause. SAHITC
Whether the subject speech is constitutionally protected in a program rated "PG" whereby parental guidance is suggested, and whether a television classification should be added to the "G" and the "PG" ratings of programs in which indecent speech may be uttered, are not within the context of the case at bar and are beyond its purview. Nor does this case make any pronouncement on whether Section 3 (c) of P.D. No. 1986 can survive a facial challenge to its constitutional validity on grounds such as overbreadth 91 for bringing speech that is contrary to "good customs" or "injurious to the prestige of the Republic of the Philippines or its people" within its sweep of speech that the MTRCB has the power to prohibit. The power of the MTRCB to review television programs was affirmed by the Court thirteen years ago in Iglesia ni Cristo v. Court of Appeals, but that case involved an "as applied" decision on the constitutionality of the power of the MTRCB to review the religious program Ang Tamang Daan, in particular, 92 and classify it as "X"-rated. The Court did not rule on the facial validity of Section 3 (c) of P.D. No. 1986, much less of the entire law . 93
Having cleared the air of questions on the nature and effect of petitioner's "as applied" constitutional challenge, let me now proceed to the concept of "subsequent punishment" of speech.
Prior restraint and subsequent punishment of speech.
Petitioner asserts that the penalty of suspension from his program Ang Dating Daan constitutes an unconstitutional subsequent punishment. The concept of "subsequent punishment" is best understood in relation to the notion of "prior restraint". Lest these constitutional doctrines be reduced to a deeply felt chorus, but unexamined rhetoric, 94 let us take a closer look at these free speech principles.
A "prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials". 95 In Chavez, we also defined prior restraints as "official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination". 96 It is not the existence merely of a "restraint" that concerns the Court, as an individual ordinarily assumes the risk of subsequent punishment for speech that is eventually found to be constitutionally unprotected. It is that the restraint is "prior" that makes it reprehensible. "Prior'' means prior to a communication's expression 97 or prior to an adequate determination 98 that the speech is not protected by the free speech clause. 99
Prior restraints are historically abhorred, as they serve to preclude speech from entering the public arena before the discussion can even begin. 100 They suppress speech directly or indirectly by inducing caution in the speaker prior to an adequate determination that the targeted speech is not protected by the free speech clause. 101 Prior restraints include administrative orders and judicial orders of injunction to refrain from engaging in speech, 102 and physical restraints to prevent speech, such as the padlocking of a newspaper office 103 or the seizure of materials for publication. 104 But permit and licensing schemes are considered the most egregious, and perhaps the most popular, version of a prior restraint, which requires speakers to secure government permission in order to speak. 105
It is well-known that the historical basis of the modern "prior restraint" doctrine is England's pervasive system of licensing, which was used to contain learning that was made widely available by the dangerous advent of the printing press. 106 The licenser was at the core of an administrative system employed to prevent seditious libel, protect copyright interests, and preserve monopolies. 107 The licensing system was maintained under the Parliament's "Regulation of Printing Acts", which prescribed what could be printed, who could print, and who could sell. 108 These Acts, however, did not sufficiently circumscribe the authority of the bureaucratic licensers. Thus, they enjoyed broad and vague powers to suppress the "many false . . . scandalous, seditious and libelous works . . . published 'to the great defamation of Religion and government'". 109 These licensers exercised unfettered discretion without due regard for political and literary value and the monetary costs to publishers affected by censorship. 110
Members of the printing trade were thus prompted to petition Parliament, complaining that the licensing scheme "subjects all Learning and true Information to the arbitrary Will and Pleasure of a mercenary, and perhaps ignorant, Licenser; destroys the Properties of Authors in their Copies; and sets up many Monopolies." 111 Eventually, the licensing system yielded to the pressure of its own weight. In 1694, licensing saw its end with the refusal of the House of Commons to renew the Regulation of Printing Acts. 112 Pointing out the evil of licensing, Sir William Blackstone 113 stated: "To subject the press to the restrictive power of a licenser, as was formerly done, . . . is to subject the freedom of sentiment to the prejudices of one man." 114
Proscription against prior restraint, however, is not sufficient as constitutionally protected speech can nevertheless be chilled by the sleight of hand of its Subsequent punishment. This voice-of-Jacob-but-hand-of-Esau situation thus calls for proscription, not only of prior restraint, but also of subsequent punishment to give full protection to speech traditionally regarded to be within the purview of the free speech clause. Subsequent punishment shares the evils of prior restraint 115 as explained, viz.:
The power of the licensor, against which John Milton directed his assault by his "Appeal for the Liberty of Unlicensed Printing", is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion . . . . A like threat is inherent in a penal statute (subsequent punishment), like that in question here, which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. 116 (emphasis supplied)
Still and all, there are constitutionally permissible prior restraints and subsequent punishments because freedom of expression is not an absolute, 117 nor is it an "unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom". 118 But permissible prior restraints are narrowly limited, few and far between, such as restraint on dissemination of information that would compromise national security in time of war, obscene speech, and speech to incite a violent overthrow of government. 119 Prior restraints admittedly reflect an "'(inversion of) the order of things; . . . instead of obliging the State to prove the guilt in order to inflict the penalty, it (is) to oblige the citizen to establish his own innocence to avoid the penalty."' 120 Consequently, and necessarily, there is a "heavy presumption" against the validity of a prior restraint. 121
The presumption against prior restraint is heavier and the degree of protection broader compared to limits on expression imposed by subsequent punishment through criminal penalties. The distinction rests on the deeply entrenched principle that a "free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of free-wheeling censorship are formidable." 122 Compared to subsequent punishment, prior restraint is more inhibiting, because it shuts off communication before it takes place and alloys less opportunity for public appraisal and criticism. 123
In the U.S., the Supreme Court has shown the procedural importance of the distinction between speech being restricted through prior restraint and that through subsequent punishment. In a subsequent criminal prosecution, the speaker is ordinarily free to assert that his or her speech is constitutionally protected. But when prior restraint operates, anyone who ignores it runs the risk of losing the right to claim this defense in a subsequent prosecution — for ignoring the restraint instead of obeying it, while challenging it judicially. 124
Applying the foregoing discussion, the landmark case Near may be used to illustrate the distinction between prior restraint and subsequent punishment. That case involved a 1925 Minnesota law that provided for the abatement as a public nuisance of any "malicious, scandalous, and defamatory newspaper, magazine, or other periodical". As a defense, the legislation permitted anyone charged with violating the law to show that the publication was true and was published with good motives and justifiable ends. The law allowed the prosecuting attorney of any county, where such a publication was produced or circulated, to seek an injunction abating the nuisance by preventing any further publication or distribution of the periodical. TESICD
Under this statute, the county attorney of Hennepin county brought suit to enjoin the publication of what was described as a "malicious, scandalous and defamatory newspaper, magazine or other periodical", known as The Saturday Press, published by defendants including Near, in the city of Minneapolis. The complaint alleged that the defendants on September 24, 1927, and on eight subsequent dates in October and November 1927, published and circulated editions of that periodical that were "largely devoted to malicious, scandalous and defamatory articles". The articles "charged, in substance, that a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis and that law enforcing officers and agencies were not energetically performing their duties". 125 The complaint imputed various charges, including dereliction of duty, complicity, participation in graft, and inefficiency against the mayor, the county attorney and the chief of police.
The trial court issued an injunction preventing further publication of the newspaper. On appeal, the Minnesota Supreme Court affirmed the constitutionality of the statute over Near's argument that the statute violated the freedom of the press clause, prompting him to appeal to the U.S. Supreme Court.
The U.S. Supreme Court noted that the object of the statute was not punishment, but suppression of the offending periodical. 126 The continued publication of scandalous and defamatory matter constituted the business to be declared as a nuisance to be abated. With respect to the public officers, it was the reiteration of charges of official misconduct and the fact that the periodical was principally devoted to that purpose that exposed the periodical to suppression. The publisher thus faced not only the possibility of a verdict against him for libel, but the determination that his periodical was a public nuisance to be abated, and that this abatement would follow unless he could prove the truth of the charges and satisfy the court that the matter was published with good motives and justifiable ends. The suppression was accomplished by enjoining publication, and this restraint was the object and effect of the legislation. 127
Moreover, the law did not only operate to suppress the periodical, it also effectively put the publisher under a censorship, because resumption of publication was punishable as a contempt of court by a fine or imprisonment. In effect, there was a permanent restraint upon the publisher, a restraint that he could only escape if he satisfied the court by giving his publication a new character of not being "malicious, scandalous and defamatory". The judgment of the lower court restrained the defendants from "publishing, circulating, having in their possession, and selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper", as defined by law. 128 The statute thus operated as a censorship, for it was incumbent upon the publisher to prove truth, good motive and justifiable ends to publish matters consisting of charges of official dereliction against public officers; otherwise, the publication would be suppressed. 129 The U.S. Supreme Court ruled that the Minnesota statute constituted an unconstitutional prior restraint that infringed press freedom.
In clarifying that the case did not involve subsequent punishment but prior restraint, and that subsequent punishment was preferred over prior restraint to check abuses on press freedom, the U.S. Supreme Court held, viz.:
In the present case, we have no occasion to inquire as to the permissible scope of subsequent punishment. For whatever wrong the appellant has committed or may commit, by his publications, the state appropriately affords both public and private redress by its libel laws. As has been noted, the statute in question does not deal with punishments: it provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction — that is, for restraint upon publication.130
xxx xxx xxx
. . . Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, thus described the practice and sentiment which led to the guaranties of liberty of the press in State Constitutions:
In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it yet stands. . . . 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. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. 131
xxx xxx xxx
. . . The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege. (emphases supplied) (footnotes omitted) 132
Thus, constituting prior restraint is a speech regulation that allows an executive officer, like a county attorney, to seek a court injunction to enjoin the further publication of a newspaper found to have repeatedly published malicious, scandalous and defamatory material; and that conditions the publication of material upon showing or proof that it is true and published with good motives and justifiable ends. The proper remedy for such possible abuse of free speech should instead be subsequent punishment consisting in the filing of charges like those for defamation, a determination that the publisher engaged in such unprotected speech, and his consequent conviction and punishment.
In sum, both constitutionally permissible prior restraints and subsequent punishments can proscribe only unprotected speech. Otherwise, if speech is protected, it should not be proscribed — whether prior or subsequent to its expression — and allowed instead to enter the free market of ideas, precisely, the free speech clause shields from incursion the right to express it. If the valid government interest pursued by the free speech regulation can be upheld through subsequent punishment, this punishment ought to be preferred over prior restraint. Prior restraint should be resorted to only in the very limited instances in which the entry of the speech into the free market of ideas would precisely thwart the government interest sought to be achieved, such as the disclosure of the number and location of troops at war as cited in Near. The preference for subsequent punishment over prior restraint is predicated upon the precaution that speech subjected to prior restraint may turn out to be protected if it were allowed to enter the free market of ideas and subjected instead to a trial for possible subsequent punishment. Subsequent punishment reduces the risk of muting speech to which the Constitution affords a decibel. Thus, the scope of permissible prior restraints is smaller than the breadth of valid subsequent punishments.
Given the facts of the case at bar, I shall now focus on prior restraint and subsequent punishment with respect to the television broadcast medium, in particular. Admittedly, the MTRCB, a regulatory body that reviews and classifies speech in movies and television, engages in prior restraint through review and censorship and in subsequent punishment of unprotected speech.
In the case at bar, petitioner was subsequently punished with a three-month suspension from his program Ang Dating Daan for the indecent speech he uttered therein. There should be no quarrel that the subject speech is indecent and unprotected in the context in which it was uttered. It could thus be subsequently punished without running afoul of the free speech protection of the Constitution. There are other examples of constitutionally valid laws that mete out subsequent punishment of unprotected speech such as the laws on libel, 133 obscenity, 134 and infringement of intellectual property rights under the Intellectual Property Code of the Philippines. 135
Still and all, while the case at bar involves speech that is unprotected in its context and subject to constitutional subsequent punishment, it nevertheless ought to be remembered —- in every case involving free speech regulation — that free speech is a preferred freedom, because it embodies the notions of liberty that are at the core of a truly free and democratic society: freedom of thought and viewpoints, discussion, self-realization, autonomy, and diversity. 136 Thus, the task of delineating speech that is constitutionally proscribed from that which is protected, even if opprobrious, requires laser-like precision. As Plato pointed out in this dialogue between the stranger and young Socrates in The Statesman, the legislator in crafting the law cannot contemplate every possible scenario:
Stranger:
And now observe that the legislator who has to preside over the herd, and to enforce justice in their dealings with one another, will not be able, in enacting for the general good, to provide exactly what is suitable for each particular case.
Young Socrates:
He cannot do so.
Stranger:
He will lay down laws in a general form for the majority, roughly meeting the cases of individuals . . . .
Young Socrates:
He will be right.
Stranger:
Yes, quite right; for how can he sit at every man's side all through his life, prescribing for him the exact particulars of his duty. 137
It is thus the task of the MTRCB initially, and of the Court with finality, to define with precision the "particulars of the duty". TDcHCa
Especially in the broadcast medium in which regulation and censorship of speech are permissible within constitutional limits, a heedful eye should guard against the possibility of individual impressions of the members of the MTRCB becoming the yardstick of action; regulation should not be in accordance with the beliefs of the individual censor, but in accordance with law. 138 The challenged Decision of the MTRCB states that, "(a)s a tv host and religious leader, he (petitioner) is expected to speak and behave on a much higher level than a non-religious one". 139 While this may be the belief of the members of the MTRCB, it finds no basis in law and should not be used as a standard for measuring whether petitioner's speech is constitutionally protected. The calculus of review should not merely be the reaction of the censor. In handing down decisions that proscribe or punish speech, the MTRCB should provide a sufficiently identifiable, thoroughly explained, and solidly grounded basis in law for the proscription. It should not only make a blanket conclusion that "the words uttered are objectionable for being immoral, indecent, contrary to law and/or good customs, or with dangerous tendency to encourage the commission of violence or of a wrong or a crime." 140 It should avoid simply casting such a wide net of speech control. The line to be drawn to separate protected from unprotected speech may sometimes be thin, but it should nevertheless be drawn and not drawn on the sand.
That petitioner should be subsequently punished for the indecent speech he uttered is not, however, the end of the story. By its nature, the penalty consisting of petitioner's three-month suspension from his program, not only subsequently punishes his past speech, but also restrains his future speech. In his Dissenting Opinion in Alexander v. U.S., 141 Justice Kennedy incisively pointed out that some governmental Actions may have the characteristics of both a subsequent punishment and a prior restraint. to illustrate, he cited the historical example of the sentence imposed on Hugh Singleton in 1579 after he had enraged Elizabeth I by printing a certain tract. Singleton was condemned to lose his right hand, thus inflicting upon him both a punishment and a disability encumbering all further printing. 142
As aforementioned, it cannot be gainsaid that the instances of constitutionally permissible prior restraints are very limited such as the disclosure of the number and location of troops at war. They are allowed only when the entry of the subject speech into the free market of ideas would precisely thwart the government interest sought to be achieved. In the case at bar, however, the records are bereft of basis — through proof and reason — for public respondent MTRCB to impose a prior restraint on petitioner's future speech for three months. Thus, while there is no doubt in my mind that petitioner ought to be subsequently punished, I am equally certain that in the absence of proof and reason, he should not be penalized with a three-month suspension that works as a prior restraint on his speech.
Even as this humble Opinion establishes a category of unprotected indecent speech, the propriety of a subsequent punishment for petitioner's speech is determined against the backdrop of the particular facts of the instant case — the subject speech was uttered by the regular host of a "G"-rated program aired live over the publicly accessible UHF Channel UN Television 37, 143 in violation of the provisions of P.D. No. 1986, which grants the MTRCB the power to prohibit indecent speech. This Opinion does not purport to settle all questions with respect to liability of program producers or broadcast licensees in other situations in which, for instance, indecent language is spoken by a person interviewed in a live news broadcast or by an athlete or a spectator in the live coverage of sports events. 144 Neither does this Opinion cover indecent speech aired over cable channels that are not publicly accessible. A context-cautious approach 145 is necessary in indecent speech adjudication to determine whether indeed a "pig that belongs to the barnyard has entered the parlor," 146 and if the farmer or the doorkeeper ought to be held responsible.
I vote to GRANT the petition.
CARPIO, J., dissenting:
Freedom of expression is always under threat even in a democracy. Those who wish to enjoy freedom of expression must steadfastly defend it whenever and wherever it is threatened. The lesson that history teaches us is clear — defend freedom of expression, or lose it.
I dissent because the three-month suspension of petitioner's TV program Ang Dating Daan constitutes an unconstitutional prior restraint on freedom of expression. The suspension prevents petitioner from even reciting the Lord's Prayer, or even saying "hello" to viewers, in his TV program. The suspension bars the public airing of petitioner's TV program regardless of whatever subject matter petitioner, or anyone else, wishes to discuss in petitioner's TV program. DHATcE
This is like suspending the publication of the Philippine Daily Inquirer for three months if its editorial describes a private person as "masahol pa sa putang babae". This is also similar to suspending for three months the column of a newspaper columnist for using the expletive "putang ina mo" in his column. Such suspension is the censorship that the Constitution outlaws when it states that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the press . . . ." 1
The remedy of any aggrieved person is to file a libel or tort case after the utterance or publication of such cusswords. Our libels laws punish with fine, imprisonment or damages libelous language already uttered or published. 2 Our tort laws also allow recovery of damages for tortious speech already uttered or published. 3 However, both our libel and tort laws never impose a gag order on future expression because that will constitute prior restraint or censorship. Thus, our libel and tort laws do not allow the filing of a suit to enjoin or punish an expression that has yet to be uttered or written.
Indeed, there can never be a prior restraint on future expression, whether for fear of possible libelous utterance or publication, or as a punishment for past libelous utterance or publication. Otherwise, many of the radio and TV political programs will have to be banned for the frequent use of cusswords and other libelous language. Even politicians will have to be barred from addressing political rallies, or the rallies themselves will have to be banned, because politicians often use cusswords and other profanities during political rallies.
In the present case, the three-month preventive suspension of petitioner's TV program bars petitioner from talking about the weather, or from talking about the birds and the bees, or even from talking about nothingness, in his TV program. The public airing of the entire TV program, regardless of its content, is totally suppressed for three months. The Government has no power under the Constitution to so brazenly suppress freedom of expression. This Court should never give its imprimatur to such a blatant violation of a fundamental constitutional right, which has been described as the one basic right that makes all other civil, human and political rights possible.
Prior Restraint on Expression
The well-settled rule is there can be no prior restraint on expression. This rule emanates from the constitutional command that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the press . . . ." The history of freedom of expression has been a constant struggle against the censor's prior restraint on expression. The leading American case of Near v. Minnesota 4 teaches us that theprimordial purpose of the Free Expression Clause is to prevent prior restraint on expression.
This well-settled rule, however, is subject to exceptions narrowly carved out by courts over time because of necessity. In this jurisdiction, we recognize only four exceptions, namely: pornography, 5 false or misleading advertisement, 6 advocacy of imminent lawless action, 7 and danger to national security. 8 Only in these instances may expression be subject to prior restraint. All other expression is not subject to prior restraint.
Although pornography, false or misleading advertisement, advocacy of imminent lawless action, and expression endangering national security may be subject to prior restraint, such prior restraint must hurdle a high barrier. First, such prior restraint is strongly presumed as unconstitutional.Second, the government bears a heavy burden of justifying such prior restraint. 9
The test to determine the constitutionality of prior restraint on pornography, advocacy of imminent lawless action, and expression endangering national security is the clear and present danger test. The expression subject to prior restraint must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent, and such danger must be grave and imminent. 10
The power of Congress to impose prior restraint on false or misleading advertisements emanates from the constitutional provision that the "advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare". 11
Prior restraint on expression may be either content-based or content-neutral. Content-based prior restraint is aimed at suppressing the message or idea contained in the expression. Courts subject content-based restraint to strict scrutiny. Content-neutral restraint on expression is restraint that regulates the time, place or manner of expression in public places without any restraint on the content of the expression. Courts subject content-neutral restraint to intermediate scrutiny.
Subsequent Punishment of Expression
The rule is also well-settled that expression cannot be subject to subsequent punishment. This rule also emanates from the constitutional command that "[n]o law shall be passed abridging the freedom of speech, of expression, or of the press . . . ." However, courts again have carved out narrow exceptions to this rule out of necessity.
The exceptions start with the four types of expression that may be subject to prior restraint. If a certain expression is subject to prior restraint, its utterance or publication in violation of the lawful restraint naturally subjects the person responsible to subsequent punishment. Thus, acts of pornography, 12 false or misleading advertisement, 13 advocacy of imminent lawless action, 14 and endangering national security, 15 are all punishable under the law.
Two other exceptions are defamation, 16 which includes libel and slander, and tortious speech. 17 Defamatory and tortious speech, per se, are not subject to prior restraint because by definition they do not constitute a clear and present danger to the State that is grave and imminent. Once defamatory or tortuous speech rises to the level of advocacy of imminent lawless action, then it may be subject to prior restraint because it is seditious 18 but not because it is defamatory or tortious. Defamation and tortious conduct, however, may be subject to subsequent punishment, civilly or criminally.
Fighting words are not subject to subsequent punishment unless they are defamatory or tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent response from an audience. Profane or vulgar words like "Fuck the draft", when not directed at any particular person, ethnic or religious group, are not subject to subsequent punishment. 19 As aptly stated, "one man's vulgarity may be another man's lyric". 20
If profane or vulgar language like "Fuck the draft" is not subject to subsequent punishment, then with more reason it cannot be subject to prior restraint. Without a law punishing the actual utterance or publication of an expression, an expression cannot be subject to prior restraint because such expression is not unlawful or illegal. IaEACT
Prior restraint is more deleterious to freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. Thus, the three-month suspension of petitioner's TV program, being a prior restraint on expression, has far graver ramifications than any possible subsequent punishment of petitioner.
Three-Month Suspension is a Prohibited Prior Restraint
The three-month suspension of petitioner's TV program is indisputably a prior restraint on expression. During the three-month suspension, petitioner cannot utter a single word in his TV program because the program is totally suppressed. A prior restraint may be justified only if the expression falls under any of the four types of expression that may be subject to prior restraint, namely, pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security.
Obviously, what petitioner uttered does not fall under any of the four types of expression that may be subject to prior restraint. What respondents assail is the following ranting of petitioner:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito . . .
No matter how offensive, profane or vulgar petitioner's words may be, they do not constitute pornography, false or misleading advertisement, advocacy of imminent lawless action, or danger to national security. Thus, petitioner's offensive, profane or vulgar language cannot be subject to prior restraint but may be subject to subsequent punishment if defamatory or tortious.
Any prior restraint is strongly presumed to be unconstitutional and the government bears a heavy burden of justifying such prior restraint. 21 Such prior restraint must pass the clear and present danger test. The majority opinion, which imposes a prior restraint on expression, is totally bereft of any discussion that petitioner's ranting poses a clear and present danger to the State that is grave and imminent. The respondents have not presented any credible justification to overcome the strong presumption of unconstitutionality accorded to the three-month suspension order.
The three-month suspension cannot be passed off merely as a preventive suspension that does not partake of a penalty. The actual and real effect of the three-month suspension is a prior restraint on expression in violation of a fundamental constitutional right. Even Congress cannot validly pass a law imposing a three-month preventive suspension on freedom of expression for offensive or vulgar language uttered in the past. Congress may punish such offensive or vulgar language, after their utterance, with damages, fine or imprisonment but Congress has no power to suspend or suppress the people's right to speak freely because of such past utterances.
In short, Congress may pass a law punishing defamation or tortious speech but the punishment cannot be the suspension or suppression of the constitutional right to freedom of expression. Otherwise, such law would be "abridging the freedom of speech, of expression, or of the press". If Congress cannot pass such a law, neither can respondent MTRCB promulgate a rule or a decision suspending for three months petitioner's constitutional right to freedom of expression. And of course, neither can this Court give its stamp of imprimatur to such an unconstitutional MTRCB rule or decision.
Conclusion
In conclusion, petitioner's ranting may constitute, at most, defamatory or tortious speech. Even then, such expression can never be subject to prior restraint like a three-month suspension of petitioner's TV program. The remedy of private respondents is to seek subsequent punishment, that is, file complaints for defamation or tortious speech against petitioner.
Any prior restraint on expression is strongly presumed to be unconstitutional and the Government bears a heavy burden of justifying such imposition of prior restraint. Such prior restraint can be justified only on four narrow grounds — pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. Here, the Government does not even claim that petitioner's ranting falls under any of these four types of unprotected speech. TaCIDS
The majority opinion does not also make any finding that petitioner's ranting poses a clear and present danger to the State that is grave and imminent. In fact, the majority opinion even declares that the clear and present danger rule is irrelevant in the present case. The majority opinion dismantles in one sweep the clear and present danger rule as applied to freedom of expression, a rule painstakingly built over almost a century of jurisprudence here and abroad. 22 The ramification of the majority's ruling can only be catastrophic to freedom of expression, which jurists have even elevated to a preferred constitutional right.
There is simply an utter lack of legal basis to impose a prior restraint — three-month suspension — on petitioner's TV program. Any such prior restraint is glaringly unconstitutional for violation of the fundamental right to freedom of expression.
Television and radio commentators, broadcasters and their guests will now tremble in fear at this new censorship power of the MTRCB. The majority opinion has invested the MTRCB with the broadest censorship power since William Blackstone wrote in 1765 that "the liberty of the press . . . consists in laying no previous restraints upon publications". This is one of the saddest and darkest days for freedom of expression in this country.
Accordingly, I vote to GRANT the petition.
Footnotes
1.Rollo (G.R. No. 165636), p. 375.
2.Id. at 923.
3.Id. at 924, Private Respondents' Memorandum.
4.Id. at 110.
5.Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of PD 1986 and the IRR.
6.Id. at 141-151.
7.Id. at 152-154.
8.Id. at 166-252.
9.Id. at 378.
10.Id. at 182.
11.Id. at 46.
12.Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747.
13.Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769.
14.Agpalo, Administrative Law (2005); citing Matienzo v. Abellera, G.R. No. 77632, June 8, 1988, 162 SCRA 1.
15.Lastimosa v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497.
16Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689.
17.Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 295-296; citing Azarcon, supra note 12, at 761; Radio Communications of the Philippines, Inc. v. Santiago, Nos. L-29236 & 29247, August 21, 1974, 58 SCRA 493, 497.
18.63 Phil. 139, 177 (1936).
19.Rollo (G.R. No. 164785), p. 12.
20.Id. at 94.
21.Id. at 95.
22.Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992, 206 SCRA 256.
23.1 De Leon, Philippine Constitutional Law 274 (2003).
24.Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing Ichong v. Hernandez, 101 Phil. 1155 (1957) and other cases.
25.US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v. Dans, Jr., No. L-59329, July 19, 1985, 137 SCRA 628.
26Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v. Pacifica Foundation, 438 U.S. 726; Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, 137 SCRA 717.
27.J.G. Bernas, S.J., The Constitution of the Republic of the Philippines: A Commentary 205 (1996). AaDSTH
28.Lagunsad v. Soto vda. de Gonzales, No. L-32066, August 6, 1979, 92 SCRA 476.
29.Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218.
30.G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490.
31.315 U.S. 568 (1942).
32.Agpalo, Philippine Constitutional Law 358 (2006).
33.Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248.
34.Bernas, supra note 27, at 248.
35.G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361.
36.413 U.S. 15.
37.438 U.S. 726.
38.Supra note 25.
39.G.R. No. 168338, February 15, 2008, 545 SCRA 441.
40."Shit, piss, fuck, tits, etc."
41.Supra note 39.
42.Supra note 26.
43.Gonzales v. Kalaw Katigbak, supra.
44.Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.
45.Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
46.16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249 U.S. 47.
47.Bernas, supra note 27, at 219-220.
48.Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835.
49.ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.
50.Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1.
51.Supra note 25, at 635.
52.No. L-82380, April 29, 1988, 160 SCRA 861.
53.Supra note 48.
54.Supra at 898.
55.Supra at 899-900.
56.Kauper, Civil Liberties and the Constitution 113 (1966); cited in Gonzales v. COMELEC, supra note 48; also cited in J.G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2003).
57.Id.
58.Bernas, supra note 27, at 81.
59.Constitution, Art.II, Sec. 13.
60.Id., id., Sec. 12.
61.Id.
62.Supra note 26, at 729.
63.G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552.
64.Supra note 56, at 235.
65.G.R. No. 155282, January 17, 2005, 448 SCRA 575.
66.Supra note 65.
67.No. L-32096, October 24, 1970, 35 SCRA 481, 496-497. AICDSa
68.Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936); Provident Tree Farms, Inc. v. Batario, Jr., G.R. No. 92285, March 28, 1994, 231 SCRA 463.
69.People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458.
70.Id.
71.Id.
CORONA, J.:
1.Article 19, Civil Code.
2.Rollo, G.R. No. 164785, p. 258; id. G.R. No. 165636, p. 375.
3.Order dated August 16, 2004.
4.Decision dated September 27, 2004. Rollo, G.R. No. 165636, p. 378.
5.Joseph Burstyn, Inc. v. Wuilson, 343 U.S. 495 (1952).
6.See Eastern Broadcasting Corporation v. Dans, Jr., G.R. No. L-59329, 19 July 1985, 137 SCRA 628; See also Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441.
7.Id.
8.Id. See also National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
9.Logan, Charles Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 Cal. L. Rev. 1687 (1997).
10.Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94 (1973).
11.Federal Communications Commission [FCC] v. Pacifica Foundation, 438 U.S. 726 (1978). This rule has also been recognized here in our jurisdiction. (See Eastern Broadcasting Corporation v. Dans, Jr., supra and Chavez v. Gonzales, supra.)
12.Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
13.Id.
14.Quale, Courtney Livingston, Hear an [Expletive], There an [Expletive], But[t] . . . The Federal Communications Commission Will Not Let You Say an [Expletive], 45 Williamette L. Rev. 207 (Winter 2008).
15.Cited in Varona, Anthony, Out of Thin: Using First Amendment Public Forum Analysis to Redeem American Broadcasting Regulation, 39 U. Mich. J.L. Reform 149 (Winter 2006).
16.Id.
17.Section 11, Article II, Constitution:
SEC. 11.The State values the dignity of every human person and guarantees full respect for human rights.
18.Section 12, Article II, Constitution:
SEC. 12.. . . The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government.
19.Section 13, Article II, Constitution:
SEC. 13.The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. . . .
20.Preamble, Constitution.
21.Section 11, Article II, Constitution.
22.Article 26, Civil Code.
23.Regina v. Butler, [1992] 2 W.W.R. 577, [1992] 1 S.C.R. 452.
24.Supra note 11.
25.Id. (Citations omitted)
26.Section 12, Article II, Constitution.
27.Section 2(A), 2004 MTRCB Implementing Rules and Regulations.
28.Section 2(B), id.
29.Carter, Edward et al., Broadcast Profanity and the "Right to be Let Alone": Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model, 31 Hastings Comm. & Ent. L.J. 1 (Fall 2008).
30.Id.
31.Ginsberg v. New York, 390 U.S. 629 (1968) (Stewart, J., concurring).
32.Id.
33.Id.
34.Araiza, William D., Captive Audiences, Children and the Internet, 41 Brandeis L.J. 397 (2003).
35.Id.
36.447 U.S. 455 (1980).
37.Id.
38.FCC v. Pacifica Foundation, supra note 11.
39.Id.
40.Miller, Jeremy, Dignity as a New Framework, Replacing the Right to Privacy, 30 T. Jefferson L. Rev. 1 (2007).
41.Carter, Edward et al.,supra note 29. The exception is in the case of certain political messages expressed in public.
42.Miller, Jeremy, supra note 40.
43.Id.
44.Sunstein, Cass R., Television and the Public Interest, 88 Cal. L. Rev. 499 (March 2000).
45.Tolentino, Arturo, Commentaries and Jurisprudence on the Civil Code of the Philippines, volume I (1990 edition), p. 59.
46.Id., p. 61.
47.Id.
48.Id.
49.Id.
50.Carter, Edward et al.,supra note 29. "The law of nuisance does not say, for example, that no one shall maintain a pigsty; it simply says that no one shall maintain a pigsty in an inappropriate place, such as a residential neighborhood". FCC, In the Matter of a Citizen's Complaint Against Pacifica Foundation Station WBAI (FM), 56 F.C.C.2d 94 (1975) cited in Carter. Edward et al., id.
51.Namely, the right of every person to dignity; the right of parents to develop the moral character of their children; the right of the youth to the promotion and protection by the State of their moral well-being and the right to privacy.
52.Presidential Decree.
53.SeeChavez v. National Housing Authority, G.R. No. 164527, 15 August 2007, 530 SCRA 235.
54.Id.
55.See paragraph (d), Section 3 of PD 1986 in relation to paragraph (c) thereof.
56.Section 2(12), Chapter 1, Book VII, Administrative Code of 1987.
57.Salinas v. Digital Telecommunications Philippines, Inc., G.R. No. 148628, 28 February 2007, 517 SCRA 67.
58.See Sections 1 and 2, Rule 65 Rules of Court. SDIACc
59.Section 6, Chapter XIII of the Rules and Regulations Implementing PD 1986 provides:
Section 6.Finality of decision of the Board. — Decisions of the Board (including that of the Chairman and the Hearing and Adjudication Committee) shall become final and executory after the lapse of the period for appeal without any appeal having been perfected.
60.Republic v. Hidalgo, G.R. No. 161657, 4 October 2007, 534 SCRA 619.
61.Carter, Edward et al., supra note 29 citing Zechariah Chafee, Jr., Free Speech in the United States 150 (1941).
62.Id.
63.Id.
64.Id.
65.FCC v. Pacifica Foundation, supra note 11.
66.Id.
TINGA, J., concurring:
1.See A. Meklejohn, Free Speech and Its Relation to Self Government (1948), p. 19.
2.Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961)
3.Id.
4.G.R. No. 155282, 17 January 2005.
5.See Section 11, Pres. Decree No. 1986, which states: "Penalty. — Any person who violates the provisions of this Decree and/or the implementing rules and regulations issued by the BOARD, shall, upon conviction, be punished by a mandatory penalty of three (3) months and one day to one (1) year imprisonment plus a fine of not less than fifty thousand pesos but not more than one hundred thousand pesos. The penalty shall apply whether the person shall have committed the violation either as principal, accomplice or accessory. If the offender is an alien, he shall be deported immediately. The license to operate the movie house, theater, or television station shall also be revoked. Should the offense be committed by a juridical person, the chairman, the president, secretary, treasurer, or the partner responsible therefore, shall be the persons penalized."
6.See P.D. No. 1986, Sec. 3(d).
7.See P.D. No. 1986, Sec. 3(k).
8.See Telecommunications & Broadcast Attorneys of the Philippines v. COMELEC, G.R. No. 132922, 21 April 1998.
9.See Reno v. ACLU, 521 U.S. 844 (1997).
PUNO, C.J., dissenting:
1.See Corcos, C., "George Carlin, Constitutional Law Scholar", 37 Stetson Law Review 899, 940 (2008).
2.Rollo, G.R. No. 164785, p. 258.
3.Ponencia, p. 16.
4.438 U.S. 726 (1978).
5.Id., at 729.
6.Id.
7.Id. at 729-730.
8.Id. at 751.
9.Id. at 750.
10.Id. at 742.
11.Id. at 739-741.
12.Id. at 748-750.
13.Id. at 748.
14.Id. at 750.
15.Id. at 750.
16.Id.
17.Winquist, J. "Arbitrary and F^@#$*! Capricious: An Analysis of the Second Circuit's Rejection of the FCC's Fleeting Expletive Regulation in Fox Television Station, Inc. v. FCC (2007)," 57 American University Law Review 723, 729 (2008).
18.Id.
19.58 F.3d 654.
20.The United States Court of Appeals, District of Columbia Circuit balanced the First Amendment rights of adults to see and hear indecent broadcast material with the government's interest in protecting children from such content. It required the FCC to limit its ban on indecent programming to between 6:00 a.m. and 10:00 p.m.
21.See In the Matter of Pacifica Foundation Inc., 2 F.C.C.R. 2698, 2699 (1987).
22.In the Matter of Complaints against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, 19 F.C.C.R. 4975, 4976 n.4. (2004).
23.See Complaints Against Various Broadcast Licensees Regarding their Airing of the "Golden Globes Awards" Program (Enforcement Bureau Golden Gloves), 18 F.C.C.R. 19859, 19861 (2003) (noting that the word "fuck" in the Bono context was fleeting and did not describe sexual or excretory activity or organs, but was instead used as an "adjective or expletive").
24.In the Matter of Complaints against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, supra at 4982 (explaining the holding and indicating that the decision is consistent with Pacifica). See Winquist, J., supra at 732, citing House Resolution. 500, 108th Cong. (2004) ("[T]he Federal Communications Commission should make every reasonable and lawful effort and use all of its available authority to protect children from the degrading influences of indecent and profane programming.") and Senate Resolution 283, 108th Cong. (2003) ("resolving that the FCC should reverse the finding of no indecency violation in the Golden Globes complaint and heighten enforcement of decency standards").
25.In the Matter of Complaints against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, supra at 4978.
26.Id. at 4979.
27.Id.
28.See In the Matter of Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 (Omnibus Order), 21 F.C.C.R. 13299 (2006).
29.Fox Television Stations v. FCC, 489 F.3d 444 (2d Cir. 2007).
30.http://www.supremecourts.gov/docket/07-582.htm.
31.See Churchill , W., "The End of the Beginning". http://www.winstonchurchill.org/i4a/pages/index.cfm?pageid=388.
32.Abrams v. U.S., 250 U.S. 616, 630 (1919), Dissenting Opinion of Justice Holmes.
33.See Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996, 259 SCRA 529.
34.Gonzales v. Commission on Elections, 37 Phil. 471, 493 (1969), citing Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877 (1963).
35.Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
36.Id. at 571-572.
37.New York Times v. Sullivan, 376 U.S. 254 (1964); Borjal v. Court of Appeals, G.R. No. 126466, January 14, 1999, 301 SCRA 1 (1999).
38.Chaplinsky v. New Hampshire, supra note 35.
39.Miller v. California, 413 U.S. 15 (1973); Gonzales v. Kalaw, G.R. No. L-69500, July 22, 1985, 137 SCRA 717 (1985).
40.Rollo, G.R. No. 164785, p. 613.
41.Rollo, G.R. No. 165636, p. 1061.
42.Ponencia, p. 14.
43.Ayer Productions Pty. Ltd. and McElroy & McElroy Film Productions v. Hon. Ignacio M. Capulong and Juan Ponce Enrile, G.R. No. 82380, April 29, 1988, 160 SCRA 861.
44.Rollo, G.R. No. 164785, pp. 470-471.
45.New York Times Co. v. Sullivan, 388 U.S. 130 (1967); Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Borjal v. Court of Appeals, supra.
46.Chaplinsky v. New Hampshire, supra note 35; Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496.
47.315 U.S. 568 (1942).
48.Terminiello v. Chicago, 337 U.S. 1 (1949).
49.Rollo, G.R. No. 165636, pp. 1060-1061.
50.354 U.S. 476 (1957).
51.G.R. No. L-69500, July 22, 1985, 137 SCRA 717.
52.413 U.S. 15 (1973).
53.Rollo, G.R. No. 164785, pp. 148-153. The transcripts of an excerpt from the August 10, 2004 episode of Ang Dating Daan read, viz.:
Bro. Manny Catangay Jusay:
. . . 'Yung pinapakita nila sa telebisyon e, paano mo pang paniniwalaan 'yung ipinapakita sa kabila e edited lahat iyon, pati 'yung meron pa silang trilyon na sinasabi. Wala pa ngang isang milyon tayo, hihingi si Bro. Eli ng milyon? Ano ba naman iyon?
Bro. Josel Mallari:
'Yung tagpo na iyon, kapatid na Manny, nabanggit n'yo din lang ano, kaanib na kayo, hindi ba no?
Bro. Manny Catangay Jusay:
Opo.
Bro. Josel Mallari:
So 'yung sinasabing trilyon na iyon, alam n'yo kung ano iyon actual e, 'yung usapan nun. Naka-attend ba kayo sa pagkakatipon natin nuon nung banggitin 'yung ah, pangangailangan na bayaran natin sa telebisyon?
Bro. Manny Catangay Jusay:
Nasubaybayan ko ho 'yung mga pangyayari na iyon.
Bro. Josel Mallari:
Ano pong naging reaksyon n'yo nung iplay nila'y naiba na 'yung kanilang ipinlay dahil walang sinasabing humihingi si Bro. Eli ng trilyon-trilyon, kung ilang . . . six trilyon na para daw sa sarili niya. E samantalang doon mismo sa pakakatipon nung pinag-uusapan ng kapatiran e ang tungkol sa problema na iyan, 'yung ipambabayad natin sa TV, iyan po'y bantad sa ating lahat e.
Bro. Manny Catangay Jusay:
Open iyan e. At saka sabihin pa natin hindi ko napanood 'yung mga naunang anong iyon, para humingi and Bro. Eli ng trilyon sa isang samahan na wala pa yatang isang milyon, naku naman, napakaimposible naman nun. Saan naman naming kukunin 'yung ibibigay naming kay Bro. Eling trilyon? Kaya hindi totoo iyon. Hindi totoo iyon. Alam kong meron na naman silang hinocus pocus. Iyon ho ang unang reaksyon ko doon.
Bro. Josel Mallari:
E, ang introduction nila roon e, nanghihingi daw ng para sa kaniyang sarili, pakinggan ang wika ninyo ito't trilyon. Pakinggan natin mabuti pa, Kapatid na Mel . . .
(PLAYBACK) ANG TAMANG DAAN NET 25 MARCH 16, 2004 9-10 PM
Michael:
Pero kapatid na Pol, gaya ng ipinangako natin sa kanila, ano ang katibayan na talagang ugali, ugali nitong pinuno, ni Mr. Kontradiksyon na manghingi sa kanyang miyembro ng kanyang pangangailangan.
Pol:
Ibig sabihin para makahingi sa miyembro sinasabi 'yung pangangailangan.
Michael:
At iyong hiningi nitong kamakailan lang . . .
Pol:
Ay mabuti'y pakinggan po natin siya. Kumapit kayo sa inyong upuan. Ito po . . .
(PLAYBACK)
Bro. Eli F. Soriano:
Bago po tayo lubusang maghiwa-hiwalay ngayong hapon at dumulog sa Dios sa pananalangin, pagsama-samahin nating ihandog sa Dios ang ating mga tulong sa Pasalamat na ito. Para po sa mga kapatid, magbabayad ng THREE MILLION SIX HUNDRED THOUSAND sa UNTV 37, tulungan n'yo naman ako. Napakalaki ng binabayaran natin. Trillion. Six trillion 'yung bayad natin nitong nakaraang buwan. Tapos sa SBN pa, tulungan n'yo naman ako mga kapatid.
Pol:
Kapatid na Michael. Mga kababayan, nagulat ba kayo? Kami rin ho, nagulat sa laki ng hinihingi nito.
Michael:
Baka 'yung ibang nanonood sa atin, nahulog sa upuan kapatid na Pol.
Pol.
Oo, isipin ho ninyo, balikan nga natin, baka sabihin nila nagkariringgan lang tayo.
Michael:
E kasi malaki ho e.
Pol:
Oo
Michael:
Six trillion! Six trillion!
Pol:
Balikan po natin uli . . .
(PLAYBACK)
Bro. Eli F. Soriano:
Para po, mga kapatid, magbabayad ng THREE MILLION SIX HUNDRED THOUSAND sa UNTV 37, tulungan n'yo naman ako. Napakalaki ng binabayaran natin. Trillion. Six trillion yung bayad natin nitong nakaraang buwan. Tapos sa SBN pa, tulungan n'yo naman ako mga kapatid.
Michael:
Mga kababayan, kapatid na Pol, talagang maliwanag po e, trillion ang hinihingi, hindi milyon, hindi bilyon. Trillion, six trillion pesos.
Pol:
Iyon daw . . .
Bro. Josel Mallari:
O ayan, iyang kalokohan nitong mga ito.
Bro. Eli F. Soriano:
Tingnan mo ha. 'Yung 3.6 milyon, ginawa nila 'yang 3 pinutol nila iyon, tapos inedit nila, idinugtong nila 'yung "llion" kaya naging trilyon, di ba 'no, kapatid na Josel? Tingnan mo 'yung kawalanghiyaan niyang mga iyan. Ipakita natin ngayon ang original.
Bro. Josel Mallari:
Sige po.
(PLAYBACK) PASALAMAT SA DIOS January 10, 2004
Bro. Eli F. Soriano:
Bago po tayo lubusang maghiwa-hiwalay ngayong hapon at dumulog sa Dios sa pananalangin, pagsama-samahin nating ihandog sa Dios ang ating mga tulong sa Pasalamat na ito. Para po sa mga kapatid, magbabayad ng THREE MILLION SIX HUNDRED THOUSAND sa UNTV 37, tulungan n'yo naman ako. Napakalaki ng binabayaran natin 3.6 million 'yung bayad natin nitong nakaraang buwan. Tapos sa SBN pa, tulungan n'yo naman ako, mga kapatid. . . .
Bro. Eli F. Soriano.
Iyan ang original, di ba? Pinutol nila 'yung 3.6 milyon, idinugtong nila 'yung three tapos "llion". Ang husay na kademonyuhan niyang mga tao na iyan. Wala na ngang dapat balikan si kapatid na Manny diyan. E, demonyong talaga e . . .
Bro. Willy Santiago.
Opo.
Bro. Josel Mallari:
Opo. Aba'y kung hindi po ba talagang mga demonyo Bro. Eli, iyan po ay hindi broadcast material.
Bro. Eli Soriano:
Oo. Hindi broadcast material iyan, wala lang talagang natutunang broadcasting ethics iyang mga tao na iyan. At pati 'yung television station nila, walang broadcast ethics na alam 'yung mga tao na iyon, dahil iyan e, alam nilang iyan e ninakaw na tape, Bro. Josel. That is not intended for broadcast. Iyan ay sa samahan natin. Pero inaano ng . . . 'Yung pamahalaan nung kanilang UNTV na iyon, walang natutunang ethics iyon.
Bro. Willy Santiago:
Net 25 po.
Bro. Eli F. Soriano:
Kung gusto nila idemanda nila ako. Walang natuto ng ethics doon, kahit anong ethics pa. Hindi na broadcasting ethics, pati Good Manners and Right Conduct, walang natutunan iyang mga taga-television na iyan. Alam mo kung bakit?
Bro. Josel Mallari:
Bakit po?
Bro. Eli F. Soriano:
E, nagbroabroadcast ng walang pahintulot ng may-ari ng tape e. Ninakaw pa 'yung tape e.
Bro. Josel Mallari:
At nung gamitin na, Bro. Eli, tinanggal po 'yung video para hindi mahalata 'yung kanilang pandodoktor.
Bro. Eli F. Soriano:
Oo, para hindi mahalata 'yung gagawin nilang hocus pocus. Gago talaga. Mga gago talaga.
Bro. Josel Mallari:
E di mga walanghiya iyan.
Bro. Eli F. Soriano:
Iyan iyang mga dapat tawagin ng P.I. di ba Kapatid na Manny? Sa ere, dapat i-PI mo iyan sa ere, lahat ng mga iyan. Gago talaga iyang mga iyan.
Bro. Josel Mallari:
Dahil nga kitang-kita mo ang motibo nila. Tinanggal nila 'yung video, pinutol-putol nila 'yung audio para patunuging 'yung 3.6 milyon ay maging 6 trilyon, Sis. Luz. Nilagyan nila ng Caption. Hindi mo nga naman mahahalata hindi mo nakikita 'yung nagsasalita e. Kung mahina-hina kang humalata, matatangay ka ng panloloko nitong mga walanghiya na ito e.
Bro. Eli F. Soriano:
Gago talaga iyan. Iyang si Michael, gago iyan. Sino pa?
Bro. Josel Mallari:
Si Pol Guevarra.
Bro. Eli F. Soriano:
Mga demonyo iyan. Mga sinungaling iyan. Alan mo sa korte, hindi nila susumpaan iyang ginagawa nila na iyan e. They will not swear to that. Alam nilang makukulong sila pagka sinumpaan nila iyan e. Kaya gusto ko dalhin nila sa korte iyan e. At baka gusto ng channel 25, dalhin n'yo sa korte iyang kawalan n'yong etiketa moral. Lahat kayo diyan, walang etiketa moral, sa pagpalabas n'yo ng ganyang mga uri ng palabas. Bakit? Iya'y pagnanakaw. Ayan. Di n'yo ba nakita nagdemanda ang channel 2, o ang channel 7 sa channel 2 dahil pinagbintangan nagnakaw ng video. Ayan, hindi ako nagbibintang. Patutunayan ko, ninakaw ninyo iyan dahil hindi iyan for broadcast, di ba? Sige, idemanda n'yo ako taga-channel 25. Magharap tayo sa korte para malaman ng buong Pilipinas kung gaano kayo kagago diyan sa Iglesia ni Manalo. Makapanira lang kayo kahit na ang tape ay iedit n'yo, halatang-halata kayo, mga anak kayo ng demonyo mula sa editor n'yo hanggang sa manager ninyo diyan. Mga anak kayo ng demonyo. Sino ang may sabi? Si Cristo. Pakinggan n'yo, 8:44 . . .
Sis. Luz Cruz:
Kayo's sa inyong amang diablo, at ang mga nais ng inyong ama ang ibig ninyong gawin. Siya's isang mamamatay-tao buhat pa nang una, at hindi nananatili sa katotohanan, sapagka't walang katotohanan sa kaniya. Pagka nagsasalita siya ng kasinungalingan, ay nagsasalita siya ng sa ganang kaniya: sapagka't siya'y isang sinungaling, at ama nito.
Bro. Eli F. Soriano:
At ama ni Michael. Diba, siya'y ama ng sinungaling at ama ni Michael at ni Pol Guevarra. Mga anak iyan, lehitimong anak ni Satanas iyang mga demonyo na iyan kapatid na Manny. O sige, subukan nilang magdemanda, kahit sa Supreme Court, haharapin ko kayo mga gago kayo. Mga ministro kayong gago. Bakit? E, biro mong panloloko sa kapwa-tao iyan, ieere mo, ieedit mo, aalisin mo 'yung video para lang makapanira ka. Malaking kademonyuhan iyan. Iyan ba kinukunsinte ng pamunuan n'yo? Kayo ba ang mga sugo ng Dios? Kapal ng pagmumukha n'yo. Kayo ba ang sugo ng Dios niyan? "yun bang erdie n'yo at saka 'yung Eduardo n'yo, sugo ba ng Dios iyan? Mga kababayang Iglesia ni Manalo, maghunos-dili kayo. Layasan n'yo iyang relihiyon na iyan dahil sa impiyerno kayo dadalhin niyang mga iyan. Sa impiyerno kayo diyan. Walang Iglesia ni Manalong naniniwala kay Manalong makakarating sa langit. Impyerno ang bagsak n'yo. Bakit? Kinukunsinte ni Manalo yung kademonyuhan nung mga pastor niya e. Kung hindi niya kinukunsinte, this is not the first time na pinasama tayo niyang mga demonyo na iyan. And this is not the second time. This is . . . they are practicing propensity about telling the public a big lie as big and even bigger than their central office. Di ba ganyan iyan? Propensity na iyan Kapatid na ano e, Kapatid na Pacing di ho ba?
Atty. Pacing Rosal:
Repeated
Bro. Josel Mallari:
Ulit-ulit na iyang talagang kawalanghiyaan na iyan, naku. E, markado nang masyado at saka branded na itong mga ito anong klase po sila. Wala kayong babalikan diyan Kapatid na Manny. Iyang klase ng mga ministro na iyan, pasamain lamang si Kapatid na Eli e pati mga ninakaw na tape, pati mga audio na pinag-edit edit, lalagyan ng caption para makita nila, maipakita nilang malinaw 'yung panloloko nila. Kasi Sis. Luz, puwede mo nang hindi lagyan ng caption e, patunugin mo na lang na ganun ang sinasabi. Pero talagang para mai-emphasize nila 'yung kanilang kawalanghiyaan, lalagyan pa nila ng caption na hindi naman talagang sinabi ni Bro. Eli kundi pinagdugtong lang 'yung audio.
Bro. Eli F. Soriano:
At saka ang malisyoso. Kitang-kita malisyoso e. Paninirang-puri e. Alam mo kung bakit? Mahilig daw ako talagang manghingi para sa aking pangangailangan. Pangangailangan ko ba 'yung pambayad sa UNTV e ang mga kontrata diyan ay hindi naman ako kapatid na Josel.
Bro. Josel Mallari:
Ay, opo.
Bro. Eli F. Soriano:
Hindi ko kontrata iyang babayaran na iyan. I am not even a signatory to that contract. Pagkatapos para pagbintangan mo ako na humingi ako para sa pangangailangan ko, gago ka talaga Michael. Masahol ka pa sa putang babae. O, di ba? "yung putang babae ang gumagana lang doon 'yung ibaba. Dito kay Michael ang gumagana 'yung itaas, diba? O, masahol pa sa putang babae iyan. Sobra ang kasinungalingan nitong mga demonyong ito. Sige, sumagot kayo. At habang ginaganyan ninyo ako, ang mga miyembro ninyo unti-unting maliliwanagan. Makikita n'yo rin, magreresulta ng maganda iyan.
Bro. Manny Catangay Jusay:
Bro. Eli, ay, iyan nga po ang sinasabi ko e, habang gumagawa sila ng ganyan, gaya nung sinabi nung Kapatid natin kagabi dahil napanood 'yung kasinungalingan ni Pol Guevarra, ay, lumuluha 'yung Kapatid, inaanyayahan 'yung mag-anak niya. Magsialis na kayo diyan. Lipat na kayo rito. Kasi kung nag-iisip lang ang isang Iglesia ni Cristo matapos ninyong mapanood itong episode na ito, iiwanan ninyo e, kung mahal ninyo ang kaluluwa ninyo. Hindi kayo paaakay sa ganyan, nagpafabricate ng mga kasinungalingan. Sabi ko nga lahat ng paraan ng pakikipagbaka nagawa na nila e, isa na lang ang hindi 'yung pakikipagdebate at patunayan na sila ang totoo. Iyon na lang ang hindi nila nagagawa. Pero demanda, paninirang-puri — nagtataka nga ako e, tayo, kaunting kibot, nakademanda sila e. 'yung ginagawa nila, ewan ko, idinedemanda n'yo ba Bro. Eli?
Bro. Eli F. Soriano:
E, papaano ka pa magdedemanda e sa piskalya pa lang ay may nakaharang na. At ang dadahilanin pa ng piskalya'y nakikiusap daw ay malacañan. Kahit hindi totoo'y nakakapasa demanda e, di ba? Kaya nga naidaing ko iyan kay Presidente e. Idinadahilan kako nung piskal e ang malacañan ang nakaano e. Kaya naman malakas ang loob kong sahibin kay Presidente iyan, may ebidensiya ako kung sinong piskal iyan. Hawak ni Atty. Pacing ang ebidensya ko e. (emphasis supplied)
54.Rollo, G.R. No. 164785, pp. 470-471.
55.403 U.S. 15.
56.343 U.S. 495, 502-503 (1952).
57.The First Amendment of the U.S. Constitution provides in relevant part, viz.:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .
58.Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA 497.
59.Eastern Broadcasting Corp. v. Dans, G.R. No. L-59329, July 19, 1985, 137 SCRA 628.
60.Supra note 58 at 441.
61.Id. at 506, citing Fenwick, H., CIVIL LIBERTIES AND HUMAN RIGHTS 296 (3rd ed. 2002).
62.Consolidated Edison v. Public Service Commission, 447 U.S. 530 (1980). The U.S. Supreme Court ruled that such a regulation was invalid.
63.United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000); Consolidated Edison Co. of New York, Inc. v. Public Service Commission, supra at 540; Zacharias, F., "Rethinking Confidentiality: Is Confidentiality Constitutional?" 75 Iowa Law Review 601, 612-613 (March, 1990).
64.See Widmar v. Vincent, 454 U.S. 263, 269-70 (1981).
65.Consolidated Edison v. Public Service Commission, supra at 536.
66.See Schneider v. State, 308 U.S. 147 (1939).
67.United States v. O'Brien, 391 U.S. 367 (1968); Schneider v. State, 308 U.S. 147 (1939); Chavez v. Gonzales, supra note 58.
68.FCC v. Pacifica, supra note 4 at 746.
69.Id.
70.Se Young v. American Mini Theatres, Inc., 427 U.S., 50, 63 n.18 (1976); Zacharias, F., "Rethinking Confidentiality: Is Confidentiality Constitutional?" 75 Iowa Law Review 601, 631-632 (March, 1990). Commercial speech, in comparison to political speech, is also a low-level protected speech that may be restricted in furtherance of only a substantial government interest and only through means that is not more extensive than necessary to directly serve that interest. (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566). See Concurring and Separate Opinion of Chief Justice Reynato S. Puno in Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, et al. G.R. No. 173034, October 9, 2007, 535 SCRA 265.
71.G.R. No. 119673 July 26, 1996, 259 SCRA 529.
72.FCC v. Pacifica, supra note 4 at 731-32.
73.Id.
74.Rollo, G.R. No. 164785, p. 261.
75.G.R. No. L-69500, July 22, 1985, 137 SCRA 717.
76.FCC v. Pacifica, supra note 4 at 746, footnote 43.
77.Schenck v. United States, 249 U.S. 47, 52 (1919), cited in Cabansag v. Fernandez, 102 Phil. 152 (1957); ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811.
78.Rollo, G.R. No. 165636, p. 88; Petition, G.R. No. 165636, p. 86; rollo, G.R. Nos. 164785 and 165636, pp. 493-493, Memorandum, G.R. Nos. 164785 and 165636, p. 25.
79.Rollo, G.R. No. 164785, p. 438; Memorandum, G.R. Nos. 164785 and 165636, p. 25.
80.Rollo, G.R. No. 164785, pp. 456-457; Memorandum, G.R. Nos. 164785 and 165636, pp. 43-44.
81.Meier, L., "A Broad Attach on Overbreadth", 40 Valparaiso University Law Review 113, 125-126 (2005).
82.Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921).
83.Meier, L., supra note81.
84.Note, "The First Amendment Overbreadth Doctrine", 83 Harvard Law Review 844 (1970).
85.Meier, L., supra note 81.
86.Hill, A., "Some Realism about Facial Invalidation of Statutes", 30 Hofstra Law Review 647, 650 (2002), citing Boos v. Barry, 485 U.S. 312, 334 (1988) ("We conclude that the display clause of [the statute at issue] is unconstitutional on its face."); Stromberg v. California, 283 U.S. 359, 369-70 (1931) ("The first clause of the statute [is] invalid upon its face . . .").
87.Note, "The First Amendment Overbreadth Doctrine", 83 Harvard Law Review 844, 845 (1970).
88.Meier, L., supra note 81 at 118.
89.Hill, A., supra note 86 at 648-650.
90.Meier, L., supra note 81 at 126-127. Gooding v. Wilson, 405 U.S. 518 (1972) is illustrative of the difference and relationship between "as applied" and "facial" challenges to the validity of a statute on grounds of overbreadth and vagueness. In that case, the defendant challenged the facial validity of a Georgia statute that punished "(a)ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace. . . ." The Court held that even if the statute may be constitutional as applied to the subject speech, which constituted "fighting words", the statute may be struck down as unconstitutional on its face for being overly broad, viz.:
. . . It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution", Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), the 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," Id., at 486, 85 S.Ct. at 1121; . . . This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.
Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights. Coates v. City of Cincinatti, 402 U.S., at 619-620, 91 S.Ct., at 1691 (opinion of White, J.) (citation omitted). (emphases supplied) (Gooding v. Wilson, 405 U.S 518, 520-521)
91."A statute is considered void for overbreadth when 'it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'" Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, citing Zwicker v. Koota, 19 L ed 444 (1967).
92.In Iglesia ni Cristo v. Court of Appeals, supra note 71, the Court identified the first issue to be resolved and held, viz.:
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's TV program "Ang Iglesia ni Cristo" . . .
xxx xxx xxx
We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board.
93.Similarly, in an "as applied" decision in MTRCB v. ABS-CBN, G.R. No. 155282, January 17, 2005, 448 SCRA 575, the Court ruled that the episode "Prostitution" of ABS-CBN's The Inside Story was subject to review by the MTRCB. The Court also ruled that "Muro Ami: The Making" was subject to review by the MTRCB in an "as applied" decision in GMA Network, Inc. v. MTRCB, G.R. No. 148579, February 5, 2007, 514 SCRA 191.
94.See Subin, "The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm", 70 Iowa Law Review 1091, 1097 (1985).
95.Baby Tam & Company, Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998) (citing Near v. Minnesota, 283 U.S. at 713).
96.Chavez v. Gonzales, supra note 58.
97.See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).
98.Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973). In this case, the U.S. Supreme Court held that an administrative order requiring a newspaper to cease placing employment advertisements in gender-designated columns, while the judicial proceedings were pending, did not constitute a prior restraint, as it was not put into effect until the court had authoritatively ruled that the practice was unprotected speech.
In Philippine jurisdiction, however, an "adequate determination" of whether speech is unprotected and maybe subject to prior restraint may be made by a quasi-judicial body such as the MTRCB, observing due process, and subject to review by the court. (See Iglesia ni Cristo v. Court of Appeals, supra note 71)
99.Tribe, L., AMERICAN CONSTITUTIONAL LAW 725 (1975).
100.Kellum. N., "Permit Schemes. Under Current Jurisprudence, What Permits are Permitted?" 56 Drake Law Review 381, 388 (2008).
101.Alexander v. U.S., 509 U.S. 544 (1993), Dissent of Justice Kennedy, pp. 574-575; Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, supra.
102.Near v. Minnesota, 283 U.S. 697 (1931); Ayer Productions Ptd. Ltd. and McElroy & McElroy Film Productions v. Hon. Ignacio M. Capulong and Juan Ponce Enrile, G.R. No. 82380, April 29, 1988, 160 SCRA 861.
103.Burgos v. Chief of Staff, G.R. No. L-64261, December 26, 1984, 133 SCRA 800.
104.David, et al. v. Macapagal-Arroyo, et al., G.R. No. 171396, May 3, 2006, 489 SCRA 160.
105.See Cox v. City of Charleston, 416 F.3d 281, 284 (4th Cir. 2005).
106.Mayton, W., "Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine," 67 Cornell Law Review 245, 247 ( 1982).
107.Id. at 248, citing Siebert, F., FREEDOM OF THE PRESS IN ENGLAND (1476-1770) 239-41 (1965).
108.Id., citing Siebert, F., supra at 249-60.
109.Id., citing Milton, J., AREOPAGITICA & OTHER PROSE WORKS 1 (1927).
110.Id., citing Siebert, F., supra at 261-62.
111.Id., citingSiebert, F., supra at 260.
112.Id., citing Levy, L., LEGACY OF SUPPRESSION 104 (1960).
113."An eighteen century English barrister, judge, and law professor who penned the Commentaries on the Laws of England, adopted, in large part, from his own lectures on the same subject matter at All Souls College in Oxford, England." Kellum, N., "Permit Schemes: Under Current Jurisprudence. What Permits are Permitted?" 56 Drake Law Review 381 (2008), footnote 25.
114.Mayton, W., supra note 106 at 247, citing 4 BLACKSTONE'S COMMENTARIES 151, 152 (Tucker ed. 1803) (emphasis in original).
115.Thornbill v. Alabama, 310 U.S. 88, 97 (1940).
116.Id., at 97-98. At issue in this case was the constitutionality of a criminal conviction for labor picketing in violation of a state statute. The U.S. Supreme Court overturned the conviction because it found that the subsequent punishment, coupled with an overly vague statute, worked in the same manner as an unconstitutional administrative licensing.
117.Gonzales v. COMELEC, 137 Phil. 471, 494 (1969).
118.Chavez v. Gonzales, supra note 58 at 486.
119.In Near v. Minnesota, 283 U.S. 697 (1931), the Court, to dictum, gave three examples of exceptional cases in which prior restraint is permissible: (1) actual obstruction of recruitment of the armed forces and publication of the sailing dates of transport or the number and location of troops; (2) enforcement of obscenity laws; and (3) endorsement of laws against incitement to acts of violence or overthrown by force of orderly government.
Also, in the U.S., movie censorship, which requires a license or permit before a particular type of expression may be engaged in, is an accepted form of prior restraint. (Times Film Corp. v. Chicago, 365 U.S. 43 (1961); Freedman v. Maryland, 380 U.S. 51 (1965).
120.Speiser v. Randall, 357 U.S. 513, 534 (1958), Concurring Opinion of Justice Black.
121.Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), New York Times Company v. U.S. 403 U.S 713 (1971).
122.Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).
123.Feinberg, J., "The Clash Between Safety and Freedom of Association in the Regulation of Prom Dates," 17 Kansas Journal of Law and Public Policy 168, 180 (2007-2008), citing Emerson, T., THE SYSTEM OF FREEDOM OF EXPRESSION 506 (1970).
124.Tribe, L., AMERICAN CONSTITUTIONAL LAW 727 (1978). See discussion on facial and as-applied challenges to the constitutional validity of a statute or regulation, supra. In Poulos v. New Hampshire, 345 U.S. 395 (1958), the U.S. Supreme Court held that, because the subject licensing law was constitutional on its face, an applicant who had been improperly refused a permit to hold religious services in a public park should have sought available judicial relief instead of holding the services without a permit and attempting to defend against the subsequent criminal prosecution by pointing to the unlawful refusal of the permit. In contrast, if a statute is void on its face because it is constitutionally overbroad or impermissibly vague or both, an individual may refuse to comply with the law's requirements and still raise the law's facial validity as a defense in a subsequent prosecution under it. (emphases supplied) (Staub v. City of Baxley, 355 U.S. 313 (1968)) Id. at 726-727.
125.Near v. Minnesota, supra note 119 at 704.
126.Id. at 711.
127.Id. at 711-712.
128.Id. at 712.
129.Id. at 712-713.
130.Id. at 715.
131.Id. at 717-718.
132.Id. at 720.
133.Act No. 3815, entitled "An Act Revising the Penal Code and other Penal Laws (The Revised Penal Code)," Title Thirteen, Chapter One on Libel.
134.The Revised Penal Code, Article 201 on immoral doctrines, obscene publications and exhibitions, and indecent shows.
135.Rep. Act No. 8293, entitled "An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for Its Powers and Functions, and for Other Purposes."
136.Feinberg, J., "The Clash between Safety and Freedom of Association in the Regulations of Prom Dates," 17 Kansas Journal of Law and Public Policy 168, 180 (2007-2008).
137.Plato, THE STATESMAN (Joseph Bright Skemp, trans. 1952).
138.See Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 685 (1968) (quoting Kingsley Int'l. Pictures Corp. v. Regents, 360 U.S. 684, 701 (1959) (Clark, J., concurring in result).
139.Rollo, G.R. No. 164785, p. 261.
140.Id.
141.509 U.S. 544 (1993).
142.Id. at 567, citing Siebert, F., FREEDOM OF THE PRESS IN ENGLAND, 1476-1776, pp. 91-92 (1952).
143.Rollo, G.R. No. 164785, p. 258.
144.See Conrad, M., "Fleeting Expletives and Sports Broadcasts: A Legal Nightmare Needs a Safe Harbor," 18 Journal of Legal Aspects of Sport 175 (2008).
145.FCC v. Pacifica, supra note 4 and 742.
146.Id.
CARPIO, J., dissenting:
1.Section 4, Article III, Constitution.
2.Article 353-359, Revised Penal Code; Article 33, Civil Code.
3.Article 26, Civil Code.
4283 U.S. 697 (1931).
5Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985).
6Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, 9 October 2007, 535 SCRA 265.
7Eastern Broadcasting Corporation v. Dans, No. 222 Phil. 151 (1985).
8Id.
9Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529; New York Times v. United States, 403 U.S. 713 (1971).
10.Bayan v. Ermita, G.R. Nos. 169838, 169848 and 169881, 25 April 2006, 488 SCRA 226.
11.Section 11(2), Article XVI, Constitution. TcCEDS
12.Article 201, Revised Penal Code.
13.Section 6(a), Milk Code.
14.Article 142, Revised Penal Code.
15.Article 138, Revised Penal Code.
16.See note 2.
17See note 3.
18.Articles 138 and 142, Revised Penal Code.
19.Cohen v. California, 403 U.S. 15 (1971).
20.Id.
21.See note 9.
22.See Schenck v. United States, 249 U.S. 47 (1919).
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