Thursday, August 25, 2011


Art vs. Censorship: The Naked Truth

The garbage in the metropolis remains uncollected, an ex-president has yet to be indicted, kidnappings and crime have been on the rise, the stockmarket is unstable and the peso continues to weaken. Yet, despite these myriad of problems, Filipinos prefer to discuss to death a rather insignificant topic, the propriety of showing an alleged bold movie! However, as the issue contains various legal implications, we shall now join the bandwagon and give our two centavos worth:
Section 4, Aricle III of the 1987 Constitution states that:

“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 grievances.”

In free expression cases, the Supreme Court has consistently been on the side of the exercise of the right, barring a “clear and present danger” that would warrant State interference and action. But, as asserted in Reyes v. Bagatsing, “the burden to show the existence of grave and imminent danger that would justify adverse action . . . lies on the . . . authorities.”

The basis used in determining the validity of prior restraint or censorship is the “clear and present danger” test. In Pita vs. Court of Appeals, the Court held that:

“There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger.” “It is essential for the validity of . . . previous restraint or censorship that the . . . authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test.”

Early on, in People vs. Kottinger, the Court laid down the test, in determining the existence of obscenity, as follows: “whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.” “Another test,” so Kottinger further declares, “is that which shocks the ordinary and common sense of men as an indecency.” Kottinger hastened to say, however, that “Whether a picture is obscene or indecent must depend upon the circumstances of the case,” and that ultimately, the question is to be decided by the “judgment of the aggregate sense of the community reached by it.”

It was People v. Padan y Alova, however, that introduced to Philippine jurisprudence the “redeeming” element that should accompany the work, to save it from a valid prosecution. The Court held that:

“We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.”

In a much later decision, Gonzalez v. Kalaw Katigbak, the Court, following trends in the United States, adopted the test: “Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Kalaw-Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in terms of the “dominant theme” of the work rather than isolated passages, which were central to Kottinger (although both cases are agreed that “contemporary community standards” are the final arbiters of what is “obscene”). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial question and as a consequence, to temper the wide discretion Kottinger had given unto law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which, states one authoritative commentator (with ample sarcasm), has been as “unstable as it is unintelligible.”

The latest word, however, is Miller v. California, which established “basic guidelines,” to wit: “(a) whether ‘the average person, applying contemporary standards’ would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently 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.”

Art and censorship will always be at odds.Taste of people vary and ultimately, the decision rests on the viewer themselves to determine which work of art is acceptable. As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided.

In the meantime, the country has bigger problems to resolve.

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