N.Y.

Times Co. v. United States - 403 U.S. 713,

91 S. Ct. 2140 (1971)
RULE:

Any system of prior restraints of expression comes to the United States Supreme Court
bearing a heavy presumption against its constitutional validity, and a party who seeks to
have such a restraint upheld carries a heavy burden of showing justification.

FACTS:

The United States government sought injunctions against the publication by the New York
Times of the contents of a classified study entitled "History of U. S. Decision-Making Process
on Viet Nam Policy” and a publication from the Washington Post. Each District Court
denied injunctive relief. The Court of Appeals for the District of Columbia affirmed the
judgment of the District Court for the District of Columbia, but the Court of Appeals for the
Second Circuit remanded the case to the District Court for the Southern District of New
York for further hearings. The cases were elevated on certiorari to the Supreme Court of
the United States.

ISSUE:

Was the government able to justify the need for prior restraint?

ANSWER:

No.

CONCLUSION:

The Court held that the government did not meet its burden of showing justification for the
imposition of a prior restraint of expression. Furthermore, it stated that under the First
Amendment, the press must be left free to publish news, whatever the source, without
censorship, injunctions, or prior restraints, and that the guarding of military and diplomatic
secrets at the expense of informed representative government was not justified.

New York Times v. United States, better known as the “Pentagon Papers”
case, was a decision expanding freedom of the press and limits on the
government's power to interrupt that freedom. President Richard Nixon used
his executive authority to prevent the New York Times from publishing top
secret documents pertaining to U.S. involvement in the Vietnam War. In a 6-
3 decision, the Court ruled that the President’s attempt to prevent the
publication was a violation of First Amendment protections for press
freedom.
Daniel Ellsberg was a part of a top secret study conducted by the
Department of Defense about the U.S. involvement in the Vietnam War.
Ellsberg leaked the study to a New York Times reporter, Neil Sheehan, who
published part of the leaked information on the New York Times Sunday
edition June 13, 1971. The headline read “Vietnam Archive: Pentagon Study
Traces 3 Decades of Growing U.S. Involvement.”
Because of the sensitive information contained in the study, the government
feared it would compromise relationships with other nations and claimed it
posed a threat to national security. The government claimed the publication
violated the Espionage Act and President Nixon ordered further publications
halted. In a matter of days, the case had reached the Supreme Court.
The Court ruled that the intent of the publication was not to put the U.S. in
danger but to educate the American people about the Vietnam War. By
preventing the New York Times from publishing the material, the reporters'
1st Amendment rights were being violated. Many historians now credit the
publishing of the “Pentagon Papers” with helping to end the Vietnam War.

Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held that
the Government failed to meet the requisite burden of proof needed to justify a prior
restraint of expression when attempting to enjoin the New York Times and Washington
Post from publishing contents of a classified study.

Synopsis of Rule of Law. Any system of prior restraints on expression comes to the
Supreme Court bearing a heavy presumption against its invalidity. The Government “thus
creates a heavy burden of showing justification for the enforcement of such a restraint.”

Facts. The United States sought to enjoin the New York Times and Washington Post
from publishing contents of a confidential study about the Government’s decision
making with regards to Vietnam policy. The District Court in the New York Times case
and the District Court and the Court of Appeals in the Washington Post case held that
the Government had not met the requisite burden justifying such a prior restraint.
Issue. Whether the United States met the heavy burden of showing justification for the
enforcement of such a restraint on the New York Times and Washington Post to enjoin
them from publishing contents of a classified study?

Held. No. Judgments of the lower courts affirmed. The order of the Court of Appeals for
the Second Circuit is reversed and remanded with directions to enter a judgment affirming
the District Court. The stays entered June 25, 1971, by the Court are vacated. The
mandates shall issue forthwith.

Dissent. The scope of the judicial function in passing upon activities of the Executive
Branch in the field of foreign affairs is very narrowly restricted. This view is dictated by the
doctrine of Separation of Powers. The doctrine prohibiting prior restraints does not
prevent the courts from maintaining status quo long enough to act responsibly. The First
Amendment is only part of the Constitution. The cases should be remanded to be
developed expeditiously.

Concurrence. To find that the President has “inherent power” to halt the publication of
news by resort to the courts would wipe out the First Amendment of the United States
Constitution [Constitution]. The First Amendment of the Constitution leaves no room for
governmental restraint on the press. There is, moreover, no statute barring the publication
by the press of the material that the Times and Post seek to publish.

The First Amendment of the Constitution tolerates no prior judicial restraints of the press
predicated upon surmise or conjecture that untoward consequences may result. Thus,
only governmental allegation and proof that publication must inevitably, directly and
immediately cause the occurrence of an event kindred to imperiling the safety of a
transport already at sea can support the issuance of an interim restraining order. Unless
and until the Government has clearly made its case, the First Amendment of the
Constitution commands that no injunction be issued.

The responsibility must be where the power is. The Executive must have the large duty
to determine and preserve the degree of internal security necessary to exercise its power
effectively. The Executive is correct with respect to some of the documents here, but
disclosure of any of them will not result in irreparable danger to the public. The United
States has not met the very heavy burden, which it must meet to warrant an injunction
against publication in these cases. The ultimate issue in this case is whether this Court
or the Congress has the power to make this law. It is plain that Congress has refused to
grant the authority the Government seeks from this Court.

Discussion. This very divided opinion shows how heavy the Government’s burden is to
justify a prior restraint of expression.
Facts and Case Summary - U.S. v.
Alvarez
Facts and case summary for U.S. v. Alvarez.

Facts
In 2007, Xavier Alvarez(link is external), an elected member of a water district board in
California, identified himself at a public meeting as a retired U.S. Marine who had been
wounded in combat many times and had received the Congressional Medal of Honor.

"I'm a retired Marine of 25 years. I retired in the year 2001," Mr. Alvarez said at a public
meeting of the board. "Back in 1987, I was awarded the Congressional Medal of Honor.
I got wounded many times by the same guy."

None of Alvarez's claims was true. He never served in the Marine Corps or any branch
of the military, was never wounded in combat, and has never received a medal of any
kind, including the nation's highest military award – the Medal of Honor. Alvarez had
previously boasted, untruly, that he played hockey for the Detroit Red Wings and that he
once married a starlet from Mexico. ((BOTTOMLINE NAG SINUNGALING SI
ALVAREZ))

Procedural History
After FBI agents obtained a tape recording of the meeting, federal prosecutors charged
Alvarez with two counts of violating the Stolen Valor Act. Alvarez's lawyer argued that
the Stolen Valor Act was invalid under the First Amendment and, therefore, the case
should be dismissed. The trial court rejected this argument. Alvarez was tried and
convicted in the United States District Court for the Central District of California. He was
sentenced to probation for three years and ordered to pay a $5,000 fine. He was the
first person convicted under the Stolen Valor Act.

Alvarez appealed the First Amendment issue, claiming that the Stolen Valor law violated
the First Amendment and, therefore, his conviction was unlawful. A three-judge panel of
the United States Court of Appeals for the Ninth Circuit agreed with Alvarez and
reversed his conviction, declaring the Stolen Valor Act unconstitutional in a vote of 2-to-
1.

The government appealed the case to the Supreme Court of the United States, which
agreed to hear it. After the Court agreed to hear the case, the United States Court of
Appeals for the Tenth Circuit, ruling in a different case, declared the Stolen Valor Act
constitutional in a vote of 2-to-1.
 Oral arguments were heard on February 22, 2012.

Issue
Whether the Stolen Valor Act, which makes it a crime to lie about receiving military
medals or honors, violates the First Amendment's guarantee of the right to free speech.

Read how the Supreme Court decided in U.S. v. Alvarez here

Holding - U.S. v. Alvarez

On June 28, 2012, the Court issued its ruling in United
States v. Alvarez. A majority of the Court concluded that
the Stolen Valor Act violated the First Amendment and
therefore, was unconstitutional.

The Plurality Opinion

The plurality opinion, written by Justice Kennedy and joined by Chief Justice Roberts,
Justice Ginsburg, and Justice Sotomayor, concluded that the content-based regulations
on speech could not meet the exacting requirements of the First Amendment. The First
Amendment generally does not allow restriction of the message, ideas, subject matter,
or content of expression. The Constitution "demands that content-based restrictions on
speech be presumed invalid . . . and that the Government bear the burden" of showing
that the restrictions on speech are constitutional.

As a general rule, content-based restrictions on speech have been permitted only when
confined to a few "historic and traditional categories of expression," such as speech
likely to incite imminent lawless action, speech integral to criminal conduct, "fighting
words," child pornography, fraud, and speech presenting some grave and imminent
threat that the government has the power to prevent.

The plurality made the following points:

• Falsity alone may not be enough to exclude speech from the protection of the First
Amendment.
• The Stolen Valor Act was too broad. It applied to a false statement made at any time, in
any place, to any person, without regard to whether the lie was motivated by the
possibility of financial gain.
• If the Court upheld the Stolen Valor Act's restrictions on false speech, the Court would
be endorsing government authority to compile a potentially unlimited list of false
statements that could be punishable by law.
• In essence, this could give the government broad and unprecedented censorship
powers.The plurality concluded that even though the government has a compelling
interest in protecting the Medal of Honor, the restrictions in the Stolen Valor Act are not
"actually necessary" to achieve that protection. The government failed to point to any
evidence that the public's general perception of military awards is diluted by false
claims, such as those made by Alvarez.

"Indeed, the outrage and contempt expressed for [Alvarez's] lies can serve to reawaken
and reinforce the public's respect for the Medal, its recipients, and its high purpose."

The plurality noted that "[t]he remedy for speech that is false is speech that is true. . . .
The theory of the Constitution is 'that the best test of truth is the power of the thought to
get itself accepted in the competition of the market.' The First Amendment itself ensures
the right to respond to speech we do not like, and for good reason."

The plurality also made the following

points:
• Freedom of speech and thought does not flow from the generosity of the state; it is an
inalienable right.
• Government suppression of speech can make exposure of falsity more difficult, not less
so.
• Society has the right and civic duty to engage in open, dynamic, rational discourse.
• "These ends are not well served when the government seeks to orchestrate public
discussion through content-based mandates."

New York Times Co. v. Sullivan

• Decision
• Cites

376 U.S. 254

New York Times Co. v. Sullivan (No. 39)
Argued: January 6, 1964
Decided: March 9, 1964
273 Ala. 656, 144 So.2d 25, reversed and remanded.

• Syllabus
• Opinion, Brennan
• Concurrence, Black
• Concurrence, Goldberg

Syllabus
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging
that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of
which appeared over the names of the four individual petitioners and many others. The
advertisement included statements, some of which were false, about police action allegedly
directed against students who participated in a civil rights demonstration and against a leader of
the civil rights movement; respondent claimed the statements referred to him because his duties
included supervision of the police department. The trial judge instructed the jury that such
statements were "libelous per se," legal injury being implied without proof of actual damages,
and that, for the purpose of compensatory damages, malice was presumed, so that such damages
could be awarded against petitioners if the statements were found to have been published by
them and to have related to respondent. As to punitive damages, the judge instructed that mere
negligence was not evidence of actual malice, and would not justify an award of punitive
damages; he refused to instruct that actual intent to harm or recklessness had to be found before
punitive damages could be awarded, or that a verdict for respondent should differentiate between
compensatory and punitive damages. The jury found for respondent, and the State Supreme
Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public
official for defamatory falsehood relating to his official conduct unless he proves "actual malice"
-- that the statement was made with knowledge of its falsity or with reckless disregard of whether
it was true or false. Pp. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a
civil action, is "state action" under the Fourteenth Amendment. P. 265.
(b) Expression does not lose constitutional protection to which it would otherwise be entitled
because it appears in the form of a paid advertisement. Pp. 265-266.[p255]
(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an
award of damages for false statements unless "actual malice" -- knowledge that statements are
false or in reckless disregard of the truth -- is alleged and proved. Pp. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate between
punitive damages, as to which, under state law, actual malice must be proved, and general
damages, as to which it is "presumed," precludes any determination as to the basis of the verdict,
and requires reversal, where presumption of malice is inconsistent with federal constitutional
requirements. P. 284.
(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it
failed to support a finding that the statements were made with actual malice or that they related
to respondent. Pp. 285-292. (((the articles were not made directly to respondet)))
[p256]

Facts of the case

During the Civil Rights movement of the 1960s, the New York Times published an ad for
contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad
contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B.
Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not
mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the
information, as required for a public figure to seek punitive damages in a libel action under
Alabama law.

When the Times refused and claimed that they were puzzled by the request, Sullivan filed a
libel action against the Times and a group of African American ministers mentioned in the
ad. A jury in state court awarded him $500,000 in damages. The state supreme court
affirmed and the Times appealed.

Question
Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of
speech and freedom of press protections?

Conclusion
To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff
show that the defendant knew that a statement was false or was reckless in deciding to
publish the information without investigating whether it was accurate.

In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a
statement concerns a public figure, the Court held, it is not enough to show that it is false
for the press to be liable for libel. Instead, the target of the statement must show that it was
made with knowledge of or reckless disregard for its falsity. Brennan used the term "actual
malice" to summarize this standard, although he did not intend the usual meaning of a
malicious purpose. In libel law, “malice” had meant knowledge or gross recklessness rather
than intent, since courts found it difficult to imagine that someone would knowingly
disseminate false information without a bad intent.

New York Times Co. v. Sullivan (1964)

Summary
This lesson focuses on the 1964 landmark freedom of the press case New York
Times v. Sullivan. The Court held that the First Amendment protects newspapers
even when they print false statements, as long as the newspapers did not act
with “actual malice.”

Resources
• Advertisement, Northwestern University
• New York Times Co. v. Sullivan, Oyez

Activity
It was 1960 and the Civil Rights Movement was gaining strength. Civil rights
leaders ran a full-page ad in the New York Times to raise funds to help civil
rights leaders, including Martin Luther King, Jr. Sixty well-known Americans
signed it. The ad described what it called “ an unprecedented wave of terror” of
police actions against peaceful demonstrators in Montgomery, Alabama. What it
described was mostly accurate, but some of the charges in the ad were not true.
For example, the ad said that police “ringed” a college campus where protestors
were, but this charge was exaggerated. The ad also contained the false
statement: “When the entire student body protested to state authorities by
refusing to re-register, their dining hall was padlocked in an attempt to starve
them into submission.”

L.B. Sullivan was one of three people in charge of police in Montgomery. He

sued the New York Timesfor libel (printing something they knew was false and
would cause harm). The ad did not mention Sullivan’s name. But Sullivan
claimed that the ad implied his responsibility for the actions of the police. He
said that the ad damaged his reputation in the community. In the Alabama court,
Sullivan won his case and the New York Times was ordered to pay $500,000 in
damages.

The Times appealed the decision to the United States Supreme Court. The
newspaper argued that it had no intention of hurting L.B. Sullivan. The
newspaper had no reason to believe that the advertisement included false
statements, so it did not check their accuracy. The Times argued that if a
newspaper had to check the accuracy of every criticism of every public official,
a free press would be severely limited.

In a unanimous decision, the United States Supreme Court ruled in favor of

the New York Times. In order to prove libel, a “public official” must show that
the newspaper acted “with ‘actual malice’–that is, with knowledge that it was
false or with reckless disregard” for truth. The Court asserted America’s
“profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open.” Free and open debate about the
conduct of public officials, the Court reasoned, was more important than
occasional, honest factual errors that might hurt or damage officials’
reputations.

Questions

1. Why did L. B. Sullivan sue the New York Times?

2. How did the Court rule?
3. What was the Court’s reasoning? Do you agree with the Court?
4. In his concurring opinion, Justice Hugo Black wrote, “I doubt that a country can
live in freedom where its people can be made to suffer physically or financially
for criticizing their government, its actions, or its officials…An unconditional right
to say what one pleases about public affairs is what I consider to be the minimum
guarantee of the First Amendment.” How did Justice Black come to the same
conclusion as the majority, but for a different reason? With which opinion do you
agree?
Answer Key
1. Sullivan was one of three people in charge of police in Montgomery Alabama.
Though he was not named in the advertisement, he argued that the false
statements it contained about police had damaged his reputation. He sued the
New York Times for libel.
2. The Court ruled against Sullivan and in favor of the New York Times.
3. The Court reasoned that free and open debate about the conduct of public
officials was more important than occasional, honest factual errors that
might hurt or damage officials’ reputations. Some students will agree,
citing the chilling effect it would have on a free press if newspapers had
to check the veracity of all statements about public officials, even those in
paid advertisements. Criticism of public officials (which can be almost
impossible to prove or disprove) could be silenced as a result.
Furthermore, the press freedom protected by the First Amendment was
intended to protect citizens’ ability to discuss political matters and check
government abuse. Others may disagree with the Court, saying that
newspapers have a responsibility to check every fact they print. They may
say that the First Amendment prevents prior restraint (government
censorship before a newspaper is printed) but does not protect newspapers
from being punished if they print falsehoods.

4. Black reasoned that the First Amendment absolutely protects all criticism
of public officials, even those criticisms leveled with “actual malice.”
Answers will vary.

CASE DIGEST : Ayer Vs Capulong

G.R. No. 82380 April 29, 1988 AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM
PRODUCTIONS, petitioners, vs. HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE,
respondents. G.R. No. 82398 April 29, 1988 HAL MCELROY petitioner, vs. HON. IGNACIO M.
CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and
JUAN PONCE ENRILE, respondents.

Petitioner McElroy an Australian film maker, and his movie production company, Ayer Productions,
envisioned, sometime in 1987, for commercial viewing and for Philippine and international release, the
historic peaceful struggle of the Filipinos at EDSA. The proposed motion picture entitled "The Four Day
Revolution" was endorsed by the MTRCB as and other government agencies consulted. Ramos also
signified his approval of the intended film production. It is designed to be viewed in a six-hour mini-series
television play, presented in a "docu-drama" style, creating four fictional characters interwoven with real
events, and utilizing actual documentary footage as background. David Williamson is Australia's leading
playwright and Professor McCoy (University of New South Wales) is an American historian have
developed a script. Enrile declared that he will not approve the use, appropriation, reproduction and/or
exhibition of his name, or picture, or that of any member of his family in any cinema or television
production, film or other medium for advertising or commercial exploitation. petitioners acceded to this
demand and the name of Enrile was deleted from the movie script, and petitioners proceeded to film the
projected motion picture. However, a complaint was filed by Enrile invoking his right to privacy. RTC
ordered for the desistance of the movie production and making of any reference to plaintiff or his family
and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears
substantial or marked resemblance to Enrile. Hence the appeal.

Issue: Whether or Not freedom of expression was violated

HELD : The Court would once more stress that this freedom includes the freedom to film and produce
motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television The
respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining
Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction
twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited
to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film
would precisely look like. There was, in other words, no "clear and present danger" of any violation of any
right to privacy that private respondent could lawfully assert. The subject matter, as set out in the
synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly
not to the private life of private respondent Ponce Enrile The extent of that intrusion, as this Court
understands the synopsis of the proposed film, may be generally described as such intrusion as is
reasonably necessary to keep that film a truthful historical account. Private respondent does not claim
that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private
respondent or that of any member of his family. His participation therein was major in character, a film
reenactment of the peaceful revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower
than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private
citizenship. he continues to be a "public figure." After a successful political campaign during which his
participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the Philippines. The line of equilibrium in the
specific context of the instant case between the constitutional freedom of speech and of expression and
the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must
be fairly truthful and historical in its presentation of events

Miller v. California
Citation. 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, 1973 U.S. 149.

Brief Fact Summary. This is one of a group of “obscenity-pornography” cases being

reviewed by the Supreme Court of the United States (Supreme Court) in a re-examination
of the standards, which must be used to identify obscene material that a State may
regulate.

Synopsis of Rule of Law. The basic guidelines for a trier of fact in an obscenity matter
must be: (a) whether the average person, applying contemporary community standards,
would find that 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.

Facts. In this case, the Appellant, Miller (Appellant), conducted a mass mailing campaign
to advertise the sale of illustrated adult material books. The Appellant’s conviction was
specifically based on his conduct in causing five unsolicited advertising brochures to be
sent through the mail. The brochures consist primarily of pictures and drawings very
explicitly depicting men and women in groups of two or more engaging in a variety of
sexual activities, with genitals often predominantly displayed. This case thus involves the
application of a state’s criminal obscenity statute to a situation in which sexually explicit
materials have been thrust by aggressive sales action upon unwilling recipients.

Issue. Whether the obscenity presented in this case is prohibited by the applicable state
statute?

Held. In sum, the Supreme Court: (a) reaffirmed the Roth holding that obscene material
is not protected by the First Amendment of the United States Constitution (Constitution),
(b) held that such material can be regulated by the States, subject to specific safeguards,
without a showing that the material is “utterly without redeeming social value and (c) held
that obscenity is to be determined by applying “contemporary community standards.” As
a result, the majority determined that the material at issue in this case was not protected
by the First Amendment of the Constitution and that the California state statute could
regulate the matter. Furthermore, the requirement that a California jury evaluate the
materials with reference to “contemporary standards” is constitutionally adequate.

Dissent. Dissenting opinions were offered by both Justice William Douglas (J. Douglas)
and Justice William Brennan (J. Brennan).
J. Douglas: It should not be the role of the court to define obscenity.
J. Brennan: The state statute in this case is unconstitutionally overbroad.

Discussion. The Supreme Court focused much of its decision on the role of a jury in this
type of matter. The Supreme Court found that, despite the guidelines that it established,
it is nearly impossible to articulate a national obscenity standard. As a result, the Supreme
Court noted that each state should be free, through state statute, to construct obscenity
laws that are representative of their communities. Furthermore, the Supreme Court noted
that the publication at issue in this case had no literary, artistic, political or scientific value.
The Supreme Court found that hard-core portrayal of sexual conduct, for its own sake
and for the ensuing commercial gain, does not fit the articulated standard.
PITA VS. COURT OF APPEALS [178 SCRA 362; G.R.
NO.80806; 5 OCT 1989]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaigninitiated

by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special
Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of
the Metropolitan Police Force of Manila, seized and confiscated from
dealers, distributors, newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in public at the
University belt along C.M. Recto Avenue, Manila, in the presence of Mayor
Bagatsing and several officers and members of various student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.

Plaintiff filed a case for injunction with prayer for issuance of the writ
ofpreliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin
said defendants and their agents from confiscating plaintiff’s magazines or from
preventing the sale or circulation thereof claiming that the magazine is a decent,
artistic and educational magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of freedom of speech
and of the press. Plaintiff also filed an Urgent Motion for issuance of a temporary
restraining order against indiscriminate seizure, confiscation and burning of
plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition
for preliminaryinjunction. The Court granted the temporary restraining order. The
case was set for trial upon the lapse of the TRO. RTC ruled that the seizure was
valid. This was affirmed by the CA.

Issue: Whether or Not the seizure violative of the freedom of expression of

the petitioner.

Held: Freedom of the press is not without restraint as the state has the right
to protect society from pornographic literature that is offensive to public morals,
as indeed we have laws punishing the author, publishers and sellers of obscene
publications. However, It is easier said than done to say, that if the pictures here
in question were used not exactly for art's sake but rather for commercial
purposes, the pictures are not entitled to any constitutional protection. Using the
Kottinger rule: the test of 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 is whether it shocks the ordinary and
common sense of men as an indecency. Ultimately "whether a picture is obscene
or indecent must depend upon the circumstances of the case and that the
question is to be decided by the "judgment of the aggregate sense of the
community reached by it." The government authorities in the instant case have
not shown the required proof to justify a ban and to warrant confiscation of the
literature 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. The court provides that the
authorities must apply for the issuance of a search warrant from a judge, if in
their opinion an obscenity seizure is in order and that;

1. The authorities must convince the court that the materials sought to be seized
are obscene and pose a clear and present danger of an evil substantive enough
to warrant State interference and action;
2. The judge must determine whether or not the same are indeed obscene. The
question is to be resolved on a case-to-case basis and on the judge’s sound
discretion;