19. Fernando v.

CA
G.R. No. 159751 | 6 December 2006 | Quisumbing, J.
Aggy | Topic: Sexually Explicit Expression (not just Obscenity)

Doctrine:
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.
(SC noted that the Miller test provides guidelines for determining w/n speech is obscene; LOOK AT
HOLDING)

Facts:
1. Philippine National Police Criminal Investigation and Detection Group in NCR (PNP-CIDG NCR)
conducted police surveillance on the store Gaudencio E. Fernando Music Fair (owned by
petitioner, Fernando).
a. They were acting on reports of sale and distribution of pornographic materials.
2. May 5, 1999 – Judge Perfecto of RTC issued a warrant against Fernando for violation of Art. 201
of RPC. It ordered the search of the Music Fair.
a. During the search, the police confiscated 25 VHS tapes and 10 different magazines,
which they deemed pornographic.
3. RTC convicted accused. CA affirmed.
4. Fernando’s main argument is that the prosecution was not able to prove that at the time of the
search they were indeed selling pornographic materials, or that he was the actual owner of the store
since the store’s Mayor’s Permit was already expired. (Basically he’s saying that he was not proven
to be the actual owner of the store so dapat hindi siya iconvict. He didn’t really argue anything about
obscenity, SC just discussed the issue)

Issue/Holding:
W/N Fernando should be convicted of violation of Art. 201 of RPC? – Yes.

§ SC noted that before conviction be tackled, it is essential to first establish that the materials were
indeed obscene. The court again restated that obscenity is unprotected speech.
§ It cited various jurisprudence which laid down tests in determining obscenity, but it noted that
no clear lines have been drawn still. Times are always changing so are individual tastes and
preferences. It seems futile to formulate a perfect definition that will apply to all cases.

§ SC noted, however, that the latest doctrine on obscenity is Miller v. California:

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.
§ Give this, 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.
§ (Just my take: Seems like SC refer to those materials that don’t have any artistic value and are
for no other purpose but satisfying the lusts of people – pero ayun nga case to case pa rin daw)
§ IN THE CASE AT BAR, both lower courts found the material obscene and there was no evidence
to show that such finding was arbitrary. Also, it is clear that he is the owner of the store:
a. The store was named after him.
b. The mayor’s permit indicated that he is indeed the owner.
c. It would be absurd to let his failure to renew his permit shield him from prosecution.
Ruling:
CA decision is affirmed.

Relevant Provisions:
Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. — The
penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:
(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

(2) (a) the authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral
plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall
include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy
the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic
in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs,
established policies, lawful orders, decrees and edicts;

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals. (As amended by PD Nos. 960 and 969).