You are on page 1of 2


Title PITA v CA
G.R. no. G.R. No. 80806
Main Topic Section 4 - Freedom of Expression - Obscenity
Other Related Topic The need of Warrant to seize “obscene” articles
Date: Oct 5, 1989


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 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.
Was the seizure constitutional?
No. Petition granted

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
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) matter of opinion. As we said earlier, it is the
divergent perceptions of men and women that have probably compounded the problem rather than resolved it.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In free
expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and present
danger" that would warrant State interference and action. But the burden to show this lies with the authorities.
"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the
speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not
only be:
(1) clear but also,
(2) present, to justify State action to stop the speech.
The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant
confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not
possessed of a lawful court order:
(1) finding the said materials to be pornography, and
(2) authorizing them to carry out a search and seizure, by way of a search warrant.

Has petitioner been found guilty for publishing obscene works under Presidential Decrees Nos. 960 and 969? This not
answered, one can conclude that the fact that the former respondent Mayor's act was sanctioned by "police power" is no
license to seize property in disregard of due process. The PD’s don’t give the authorities the permission to execute high-
handed acts.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable
and subject to challenge.

There is of course provision for warrantless searches under the Rules of Court but as the provision itself suggests, the
search must 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
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.