People vs.
Kottinger
DoP: 29 Oct 1923
Ponente: Malcolm
Nature: Appeal from a judgment of the CFI of Manila
Quick Summary: Pictures depicting native inhabitants in their native
attire and in poses showing how they live in real life is not obscene or
indecent.
Facts:
On November 24, 1992 detective Juan Tolentino raided Camera
Supply Co. located at 110 Escolta, Manila where he found and
confiscated postcards depicting non-Christian inhabitants of the
Philippines in their native attire and in poses showing how they live.
The six pictures are as follows:
Exhibit Legend
A Philippines, Bontoc Woman.
A-1 Greetings from the Philippines (depicting five
young boys)
A-2 Ifugao Belle, Philippines
A-3 Igorrot Girl, Rice Field Costume.
A-4 Kalinga Girls, Philippines.
A-5 Moros, Philippines.
J.J. Kottinger, the manager of the company, was charged of having
kept for sale in the store, obscene and indecent pictures in violation of
section 12 of Act. No. 277 (The Philippine Libel Law).
The prosecution produced no evidence proving the obscenity and
indecency of the postcards as they believed the postcards themselves
are the best evidence of that.
Dr. H. Otley Beyer, a UP professor, and corroborated by other
witnesses, testified that none of the pictures showed anything that he
did not see on various occasions in his studies.
The defendant interposed a demurrer 1 based upon the ground that the
facts alleged therein do not constitute an offense and were not contrary
to law.
The trial court overruled the demurrer. The defendant was found guilty
of the offense.
The question was one of first impression not just in the Philippines,
but also in the US, Great Britain and elsewhere, which is why the case
was submitted en banc for decision.
Issue:
1. (technical argument) WoN section 12 prohibits the taking, selling,
and publishing of alleged obscene and indecent pictures and prints.
2. (decisive issue) WoN the pictures portraying the inhabitants of the
country in native dress and as they appear and can be seen in the
regions in which they live, are obscene or indecent.
Held: The Court disagrees with the appellant on his technical
argument but agrees with him on his main contention.
1. While the information is lacking in precision, and while the content
of section 12 of the Libel Law is not as inclusive as it might be, the
information is not fatally defective and covers the alleged facts.
Act. No. 277, section 12 states:
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an objection that an opponent's point is irrelevant or invalid, while granting
the factual basis of the point
“Any person who writes composes, stereotypes, prints, publishes,
sells, or keeps for sale, distributes, or exhibits any obscene or
indecent writing, paper, book, or other matter, or who designs, copies,
draws, engraves, paints, or otherwise prepares any obscene picture or
print, or who moulds, cuts, casts, or otherwise makes any obscene or
indecent figure, who writes, composes or prints any notice or
advertisement of any such writing, paper, book, print, or figure shall
be guilty of a misdemeanor and punished by a fine of not exceeding
1000 dollars or by imprisonment not exceeding one year, or both.”
The law provides punishment for the sale or exhibition of any
obscene/indecent writing, paper, book, or other matter. “Or other
matter” is added as a catch-all phrase, intended to cover kindred
subjects as its antecedent. The rule of ejusdem generis is not a
universal rule, and should be applied in order to carry out the
legislative intent.
While it may be conceded that section 12 does not cover the present
case, article 571, no. 2 of the Penal Code and section 730 of the
Revised Ordinances of the City of Manila may be applied. Section 730
states that not person shall “exhibit, circulate, distribute, sell […] any
lewd, indecent, or obscene book, picture […] or any other thing”
2. Pictures portraying the inhabitants of the country in native dress and
as they appear and can be seen in the regions in which they live are
not obscene or indecent within the meaning of the Libel Law.
Not one parallel case could be found, so the Court perforced reason
from the general to the specific, from universal principle to actual fact.
“Obscenity” is defined as something offensive to chastity, decency or
delicacy. “Indecency” is an act against good behavior and a just
delicacy. The test for obscenity is 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 is
whether or not it shocks the ordinary and common sense of men as an
indecency.
The Libel Law does not define what constitutes obscene or indecent
writings, pictures, etc. but the words “obscenity” and “indecency” are
themselves descriptive, words in common use and every person of
average intelligence understands their meaning. Whether a picture is
obscene/indecent must depend on the circumstances of the case.
The Court turned to Federal Laws prohibiting the use and importation
of obscene materials into the Philippines in order to shed light on what
constitutes as obscene or indecent. “Obscene” as used in the Federal
statutes makes it a criminal offense to place in the mail any obscene,
lewd, or lascivious publication, signifies that form of immorality
which has relation to sexual impurity, has the same meaning given at
common law in prosecutions for obscene libel.
In the case of U.S. vs. Harmon (regarding a violation of the Postal
Law), the Court held that the word “obscene”, in the absence of a
definition in the statute, is presumed to be employed by the lawmaker
in the ordinary sense of the word and cannot be said to have acquired
any technical significance. A standard dictionary defines “obscene” as
“offensive to chastity and decency; expressing or presenting to the
mind or view something which delicacy, purity, and decency forbid to
be exposed. ”
In Rex vs. Hicklin, the Chief Justice said “The test of obscenity is this:
[…] and where it would suggest to the minds of the young of either
sex, or even to persons of more advanced years, thoughts of the most
impure, causing lewd thoughts of an immoral tendency.”
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Laws of this character are made for society in the aggregate, and not In her defence, she claimed that her performance (hula hula
in particular. So while there may be some individuals or societies
dance) was her portrayal of the life of a widow whose guerrilla
whose moral sense would neither be depraved or offended, such
cannot be allowed to be a standard which obscenity/indecency is to be husband was killed by the Japanese; depicting the different emotions
tested. The test, rather, is what is the judgment of the aggregate sense
of the widow such as sadness, anger and happiness. She was
of the community reached by it? What is the probable effect on the
sense of decency, purity and chastity of society, extending to the prosecuted for violation of Article 201 of the Revised Penal Code
family (the foundation of the state)?
which penalizes:
It appears that a national standard has been set up by the Congress of “3. Those who in theatres, fairs, cinematographs or any
the US. There are copies of reputable magazines which circulate
other place open to public view, shall exhibit indecent or immoral
freely throughout the US and other countries and admitted in the
Philippines which contain illustrations similar to the pictures in plays, scenes, acts and shows.”
questions. Publications of the Philippine Government (“Ifugao Law”,
Issue:WON accused-appelant’s dancing was indecent or immoral in
“Philippine Journal of Science”, Reports of the Philippine
Commission for 1903, 1912, 1913) have also been offered in violation of article 201 of the RPC?
evidence.
Ruling:The court ruled that the accused had exhibited indecent and
The pictures in question merely depict persons as they actually live, immoral acts. The gauge whether her dancing was immoral or
without attempted presentation of persons in unusual postures or
indecent was the reaction of the public. Evidently, the spectators had
dress. The aggregate judgment of the Philippine community, the moral
sense of all the people in the Philippines, would not be shocked by given their unequivocal verdict when they were howling and shouting:
photographs of this type.
“Siguemuna, sigue, nakakalibog”. Counsel for defense also advances
The Court is convinced the postcards cannot be characterized as the argument that the reaction of the low class and uncultured
offensive to chastity, or foul, or filthy. The Court notes the statement
audience is an unreliable gauge in determining the objective indecency
of the proprietor of the photos that he would on his own initiative
place suitable and explicit inscriptions on the pictures so that no one and decency of a performance. The court clarified that the test whether
may be misled and may even withdraw from sale certain pictures that
a particular act is obscene is its tendency “to deprave or corrupt those
may be offensive to the sensibilities of his customers.
whose minds are open to such influences”, be they cultured or not.
Dispositive: Judgment reversed. Information is dismissed. Defendant-
PEOPLE V. PADAN
appellant is acquitted with all costs de oficio.
Facts:
The accused exhibited immoral scenes and acts in one of the Manila
Dissenting Opinion (Romualdez)
nightclubs. Moreover, the manager and ticket collector were also part
While the pictures cannot strictly be termed obscene, they must be
of the accused for hiring the women to perform sexual intercourse in
regarded as indecent.
the presence of many spectators.
They were charged with a violation of the RPC Article 201 in the trial
Such pictures offend modesty and refinement, and as such, is indecent.
court. All pleaded not guilty. One of the accused however, changed her
This is shown by common sense as no woman claiming to be decent
mind and pleaded guilty. All were convicted. The evidence of the
would stand before the public in Manila (where the pictures where
lewd show was confiscated.
exhibited) in the same fashion as the pictures.
The accused filed an appeal in the Supreme Court. 2 of the appellants,
manager Fajardo and ticket collector Yabut, failed to file their briefs
In non-Christian regions, such pictures may not be offensive, but in
within the period prescribed by law and their appeal was dismissed by
Manila, where they were exhibited, they are.
resolution of this Court of November 25, 1955, and the decision as to
them became final and executory on January 7, 1956.
PEOPLE v. APARICI
The defendant who pleaded guilty, Marina Padan, in her appeal did
Facts: not question her conviction; she merely urged the reduction of the
penalty by eliminating the prison sentence. The Supereme Court did
On February 3, 1953 Detectives Nibungco and Jose
not consider this because the trial court judge reduced the fine from
accompanied by photographers Fajardo and Domingo of the Manila 600 to 200.
Chronicle, went to Azcarraga Theatre, in order to observe what was
Issue: Were the acts obscene and thereby punishable by Art 201 of the
being exhibited by the accused Virginia Aparici there. She was in a RPC?
dimly lit stage “dancing with her hips swaying” with nothing on
Held: Yes.
except nylon patches over her breasts and a “too abbreviated pair of
Ratio:
nylon panties to interrupt her stark nakedness” and around her waist
This is the first time that the courts in this jurisdiction, have been
was a “furry white girdle with a middle piece punctuating attention on called upon to take cognizance of an offense against morals and
decency of this kind. We have had occasion to consider offenses like
the thing she was supposed to hide”. There were more than 100
the exhibition of still moving pictures of women in the nude, which
customers and all of them were men. Most of them have been howling 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;
and shouting in tagalog: “siguemuna, siguenakakalibog”. Detectives
that connoisseurs of the same, and painters and sculptors might find
Nibungco and Jose stopped the show and asked the accused to put on inspiration in the showing of pictures in the nude, or the human body
exhibited in sheer nakedness.
her dress and to surrender to them her brassiere and panties.

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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. We repeat that because of
all this, the penalty imposed by the trial court on Marina, despite her
plea of guilty, is neither excessive nor unreasonable.
On the appeal of Fajardo, he claimed that he was an innocent
bystander but that because of his popularity in the neighborhood, he
was requested by the spectators to select the man and the woman to
engage or indulge in the actual act of coitus before the spectators.
After making the selection, he did not even care to witness the act but
left the scene and returned to it only when he heard
a commotion produced by the raid conducted by the police.
The evidence on his active participation and that he was the manager
and one in charge of the show is however ample, even conclusive. In
1953, the place used for ping-pong was used for an exhibition of
human "fighting fish", the actual act of coitusor
copulation. Tickets were sold at P3 each, and the show was supposed
to begin at 8:00 o'clock in the evening.
The Manila Police Department must have gotten wind of the affair;
it bought tickets and provided several of its members who later
attended the show, but in plain clothes, and after the show conducted a
raid and made arrests. At the trial, said policemen testified as to what
actually took place inside the building. About two civilians who
attended the affair gave testimony as to what they saw.
The customers not provided with tickets actually paid P3 at the
entrance to defendant Ernesto Reyes. He also collected tickets. In all,
there were about ninety paying customers, while about sixteen were
allowed to enter free, presumably friends of the management. Jose
Fajardo y Garcia was clearly the manager of the show. He was at the
door to see to it that the customers either were provided with tickets or
paid P3.00 entrance fee. He even asked them from whom they
had bought the tickets. He ordered that an army steel bed be placed at
the center of the floor, covered with an army blanket and provided
with a pillow. Once the spectators, about 106 in number, were
crowded inside that small building, the show started.
Besides, as found by the trial court and as shown by some of
the tickets collected from the spectators, submitted as exhibits,
said tickets while bearing on one side superimposed with rubber
stamped name "Pepe Fajardo," which defendant Fajardo admits to be
his name.
Considering all the above circumstances, we agree with the trial court
that Jose Fajardo is the most guilty of the four, for he was the one who
conducted the show and presumably derived the most profit or gain
from the same.
PITA V. CA
Facts:
In 1983, elements of the Special Anti-Narcotics Group, and the Manila
Police, seized and confiscated from dealers along Manila sidewalks,
magazines believed to be obscene. These were later burned. One of
the publications was Pinoy Playboy published by Leo Pita.
He filed an injunction case against the mayor of manila to enjoin him
from confiscating more copies of his magazine and claimed that this
was a violation of freedom of speech. The court ordered him
to show cause. He then filed an Urgent Motion for issuance of a
temporary restraining order against indiscriminate seizure.
Defendant Mayor Bagatsing admitted the confiscation and burning of
obscence reading materials but admitted that these were surrendered
by the stall owners and the establishments were not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no
answer.
On January 11, 1984, the trial court issued an Order setting the case
for hearing on January 16, 1984 "for the parties to adduce evidence on
the question of whether the publication 'Pinoy Playboy Magazine
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alleged (sic) seized, confiscated and/or burned by the defendants, are
obscence per se or not".
On February 3, 1984, the trial court promulgated the Order appealed
from denying the motion for a writ of preliminary injunction, and
dismissing the case for lack of merit
The CA also dismissed the appeal due to the argument that freedom of
the press is not without restraint.
In the SC, the petitioner claimed that:
1. The CA erred in holding that the police officers could without any
court warrant or order seize and confiscate petitioner's magazines on
the basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial
court and, in effect, holding that the trial court could dismiss the case
on its merits without any hearing thereon when what was submitted to
it for resolution was merely the application of petitioner for the writ of
preliminary injunction.
Issue: Was the seizure constitutional?
Held: No. Petition granted
Ratio:
Test for obscenity: "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
Also, "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." (Kottinger)
When does a publication have a corrupting tendency, or when can it be
said to be offensive to human sensibilities?
The issue is a complicated one, in which the fine lines have neither
been drawn nor divided.
Katigbak- "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.
The latest say on American jurisprudence was Miller v. California,
which expressly abandoned Massachusettes, and 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.
The lack of uniformity in American jurisprudence as to what
constitutes "obscenity" has been attributed to the reluctance of the
courts to recognize the constitutional dimension of the problem.
Apparently, the courts have assumed that "obscenity" is not included
in the guaranty of free speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates predicated
upon arbitrary, if vague theories of what is acceptable to society.
In the case at bar, there is no challenge on the right of the State, in the
legitimate exercise of police power, to suppress smut provided it is
smut. For obvious reasons, smut is not smut simply because one
insists it is smut. So is it equally evident that individual tastes develop,
adapt to wide-ranging influences, and keep in step with the rapid
advance of civilization. What shocked our forebears, say, five decades
ago, is not necessarily repulsive to the present generation.
But neither should we say that "obscenity" is a bare (no pun intended) ISSUE:
matter of opinion. As we said earlier, it is the divergent perceptions of
men and women that have probably compounded the problem rather Whether or not obscenity is a ground for the State to exercise its
than resolved it. police power to restrain the Constitutional guarantee of freedom of
Undoubtedly, "immoral" lore or literature comes within the ambit of speech.
free expression, although not its protection. In free expression cases,
this Court has consistently been on the side of the exercise of the right,
barring a "clear and present danger" that would warrant State HELD:
interference and action. But the burden to show this lies with the
authorities. Court of Appeals affirming the Decision of the Regional Trial Court of
"There must be objective and convincing, not subjective or Manila is hereby affirmed.
conjectural, proof of the existence of such clear and present danger."
As we so strongly stressed in Bagatsing, a case involving the delivery OBITER DICTUM:
of a political speech, the presumption is that the speech may validly be
said. The burden is on the State to demonstrate the existence of a
danger, a danger that must not only be: (1) clear but also, (2) present, Obscenity is an unprotected speech which the State has the
to justify State action to stop the speech. right to regulate, the State in pursuing its mandate to protect, as
The Court is not convinced that the private respondents have shown parens patriae, the public from obscene, immoral and indecent
the required proof to justify a ban and to warrant confiscation of the materials must justify the regulation or limitation. Obscenity as
literature for which mandatory injunction had been sought below. First defined in People v. Kottinger, is something which is offensive to
of all, they were not possessed of a lawful court order: (1) finding the chastity, decency or delicacy.
said materials to be pornography, and (2) authorizing them to carry out
a search and seizure, by way of a search warrant. In this case, the trial court found the confiscated materials
Has petitioner been found guilty for publishing obscene works under obscene and the Court of Appeals affirmed such findings. Pictures of
Presidential Decrees Nos. 960 and 969? This not answered, one can men and women in the nude doing the sexual act appearing in the nine
conclude that the fact that the former respondent Mayor's act was (9) confiscated magazines and two (2) issues of QUI are offensive to
sanctioned by "police power" is no license to seize property in morals and are made and shown not for the sake of art but rather for
disregard of due process. The PD’s don’t give the authorities the commercial purposes, that is gain and profit as the exclusive
permission to execute high-handed acts. consideration in their exhibition. The pictures in the magazine
It is basic that searches and seizures may be done only through a exhibited indecent and immoral scenes and acts. The exhibition of the
judicial warrant, otherwise, they become unreasonable and subject to sexual act in their magazines is but a clear and unmitigated obscenity,
challenge. indecency and an offense to public morals, inspiring lust and
There is of course provision for warrantless searches under the Rules lewdness, exerting a corrupting influence especially on the youth.
of Court but as the provision itself suggests, the searchmust have been
an incident to a lawful arrest and it must be on account fo a crime
committed.
The Court rejected the argument that "[t]here is no constitutional nor
legal provision which would free the accused of all criminal
responsibility because there had been no warrant, and there is no
"accused" here to speak of, who ought to be "punished".
Second, to say that the respondent Mayor could have validly ordered
the raid (as a result of an anti-smut campaign) without a
lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge,
jury, and executioner rolled into one.

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS vs.

COURT OF APPEALS
G.R. No. 159751 December 6, 2006
QUISUMBING, J.:

FACTS:

The National Police Criminal Investigation and Detection

Group in the National Capital Region (PNP-CIDG NCR) conducted
police surveillance on the store bearing the name of Gaudencio E.
Fernando Music Fair (Music Fair). Judge Perfecto Laguio issued a
search warrant against Gaudencio E. Fernando and a certain Warren
Tingchuy. The warrant ordered the search of Gaudencio E. Fernando
Music Fair and the seizure of obscene pictures and pornographic
shows.

After searching the premises and confiscating twenty-five

(25) VHS tapes and ten (10) different magazines, which they deemed
pornographic, Petitioners with Warren Tingchuy, were charged for
selling and exhibiting obscene copies of x-rated VHS Tapes pursuant
to Article 201 of the Revised Penal Code.