Libel (Unprotected Speech) Miller v. California – 37 L. Ed.

2d 419

Policarpio v. Manila Times – 5 SCRA 148 Gonzales v. Kalaw-Katigbak – 137 SCRA 717

Lopez v. CA – 34 SCRA 116 Pita v. CA – 178 SCRA 362

New York Times Co. c. Sullivan – 376 US 254 Barnes v. Glen Theater – 498 US 439

Rosenbloom v. Metromedia, Inc. – 403 US 254 FCC v Pacifica Foundation – 438 US 726

Gerts v. Robert Wlech – 418 US 323

Hustler v. Magazine – 485 US 46

In Re Jurado AM No. 90-5-2373, 4 LR 19 Aug’09

In Re Jurado – 243 SCRA 299

Vasquez v. CA – GR 118971 Sept. 15, 1999

Borjal v. CA – GR. 126466 Jan. 14, 1999

Vicario v. CA – GR 124491 June 1, 1999

Pader v. People – 325 SCRA 117

Fermin v. People, GR 157643, March 28, 2008

Obscenity (Unprotected Speech)

1
2
 RATIO:

In Re: Emil Jurado

A.M. No. 93-2-037 SC | April 6, 1995 | 243 SCRA 299

TOPIC: Libel; Freedom of Speech

SUMMARY:

DOCTRINE:

FACTS:

A.M. No. 93-2-037 SC. April 6, 1995.*

ISSUE:
IN RE EMIL (Emiliano) P. JURADO Ex Rel.: Philippine Long
Distance Telephone Company (PLDT), per its First Vice-President,
Mr. Vicente R. Samson.
RULING:
Constitutional Law; Freedom of Expression; Freedom of the
Press; The constitutional right of freedom of expression may not be

3
availed of to broadcast lies or half-truths.—Freedom of expression,
the right of speech and of the press is, to be sure, among the most
zealously protected rights in the Constitution. But every person
exercising it is, as the Civil Code stresses, obliged “to act with justice,
give everyone his due, and observe honesty and good faith.” The
constitutional right of freedom of expression may not be availed of to
broadcast lies or half-truths—this would not be “to observe honesty
and good faith;” it may not be used to insult others, destroy their
name or reputation or bring them into disrepute—this would not be
“to act with justice” or “give everyone his due.”
_______________
* EN BANC.
300
300 SUPREME COURT REPORTS ANNOTATED  they publish. The norm does not require that a journalist guarantee
In Re: Emil P. Jurado
Same; Same; Same; Right to Private Reputations; Protection of
the right of individual persons to private reputations is also a
matter of public interest and must be reckoned with as a factor in
identifying and laying down the norms concerning the exercise of
press freedom and free speech.—In the present proceeding, there is
also involved an acknowledged and important interest of individual
persons: the right to private reputation. Judges, by becoming such,
are commonly and rightly regarded as voluntarily subjecting
themselves to norms of conduct which embody more stringent
standards of honesty, integrity, and competence than are commonly
required from private persons. Nevertheless, persons who seek or
accept appointment to the Judiciary cannot reasonably be regarded
as having thereby forfeited any right whatsoever to private honor and
reputation. For so to rule will be simply, in the generality of cases, to
discourage all save those who feel no need to maintain their self-
respect as a human being in society, from becoming judges, with
obviously grievous consequences for the quality of our judges and the
quality of the justice that they will dispense. Thus, the protection of
the right of individual persons to private reputations is also a matter
of public interest and must be reckoned with as a factor in identifying
and laying down the norms concerning the exercise of press freedom
and free speech.
Same; Same; Same; Same; The norm does not require that a
journalist guarantee the truth of what he says or publishes. But the
norm does prohibit the reckless disregard of private reputation by
publishing or circulating defamatory statements without any bona
fide effort to ascertain the truth thereof.—Clearly, the public interest
involved in freedom of speech and the individual interest of judges
(and for that matter, all other public officials) in the maintenance of
private honor and reputation need to be accommodated one to the
other. And the point of adjustment or accommodation between these
two legitimate interests is precisely found in the norm which requires
those who, invoking freedom of speech, publish statements which are
clearly defamatory to identifiable judges or other public officials to
exercise bona fide care in ascertaining the truth of the statements
the truth of what he says or publishes. But the norm does prohibit
the recklessdisregard of private reputation by publishing or
circulating defamatory statements without anybona fide effort to
ascertain the truth thereof. That this norm represents the generally
accepted point of balance or adjustment between the two interests
involved is clear from a consideration of both the pertinent civil law
norms and the Code of Ethics adopted by the journalism profession
in the Philippines.
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VOL. 243, APRIL 6, 1995 301 
In Re: Emil P. Jurado
Same; Same; Same; Same; Failure to “present the other side” is
reprehensible, being what in law amounts to a denial of due
process.—If relying on second-hand sources of information is, as the
Journalists’ Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to “present the
4
other side” is equally reprehensible, being what in law amounts to a
denial of due process.
Same; Same; Same; Same; Journalist’s Code of Ethics; Jurado
was gravely at fault, at the very least for disregarding the
Journalist’s Code of Ethics—in failing to exert bona fide efforts to
verify the accuracy of his information.—The record does not show
that before he published that story, Jurado ever got in touch with
Veto or anyone in Equitable Bank, Ermita Branch, to determine the
accuracy of what he would later report. If he did, he would quickly
have learned that his sources, whoever or whatever they were, were
not to be relied upon. If he did not, he was gravely at fault—at the
very least for disregarding the Journalist’s Code of Ethics—in failing
to exert bona fide efforts to verify the accuracy of his information.
Same; Same; Same; Same.—In either case, his publication of the
slanted, therefore misleading and false, report of the affair is
censurable. His proffered explanation: that the justices having
confirmed their presence at the luncheon, thus corroborating what
he had written in vital details and making further substantiation
unnecessary, and that his report constituted fair comment on the
public conduct of public officers, obviously does not at all explain
why a party given by Atty. Veto was reported by him as one tendered
by Equitable Bank. The only conclusion that may rationally be drawn
from these circumstances is that Jurado, unable to advance any
plausible reason for the conspicuous divergence between what in fact
transpired and what he reported, again resorts to semantics and
sophistry to attempt an explanation of the unexplainable.
Paraphrasing the Code of Ethics, he failed to scrupulously report and
interpret the news; on the contrary, his failure or refusal to verify
such essential facts as who really hosted and tendered the luncheon
and spent for it, and his playing up of the Bank’s supposed role as
such host have resulted in an improper suppression of those facts
and a gross distortion of the truth about them.
Remedial Law; Contempt; Courts; Contempt is punishable, even if
committed without relation to a pending case.—Contempt is
punishable, even if committed without relation to a pending case.
Philippine jurisprudence parallels a respectable array of English
decisions holding contumacious scurrilous attacks against the courts
calculated to bring 
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302 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
them into disrepute, even when made after the trial stage or after the
end of the proceedings. The original doctrine laid down in People vs.
Alarcon,—that there is no contempt if there is no pending case—has
been abandoned in subsequent rulings of this Court.
Same; Same; Same; The Court may hold anyone to answer for
utterances offensive to its dignity, honor or reputation, which tend
to put it in disrepute, obstruct the administration of justice, or
interfere with the disposition of its business or the performance of
its functions in an orderly manner.—Jurado would also claim that
the Court has no administrative supervision over him as a member of
the press or over his work as a journalist, and asks why he is being
singled out, and, by being required to submit to a separate
administrative proceeding, treated differently than his other
colleagues in media who were only asked to explain their reports and
comments about wrongdoing in the judiciary to the Ad
Hoc Committee. The answer is that upon all that has so far been said,
the Court may hold anyone to answer for utterances offensive to its
dignity, honor or reputation, which tend to put it in disrepute,
obstruct the administration of justice, or interfere with the
disposition of its business or the performance of its functions in an
orderly manner. Jurado has not been singled out. What has
happened is that there have been brought before the Court, formally
and in due course, sworn statements branding his reports as lies and
thus imposing upon him the alternatives of substantiating those
reports or assuming responsibility for their publication.
Same; Same; Same; R.A. No. 53, Right of Refusal to Disclose
Sources; The right of refusal to disclose sources under R.A. No. 53 is
without prejudice to liability under civil and criminal laws.—This
5
opinion neither negates nor seeks to enervate the proposition that a
newsman has a right to keep his sources confidential; that he cannot
be compelled by the courts to disclose them, as provided by R.A. 53,
unless the security of the State demands such revelation. But it does
hold that he cannot invoke such right as a shield against liability for
printing stories that are untrue and derogatory of the courts, or
others. The ruling, in other words, is that when called to account for
publications denounced as inaccurate and misleading, the journalist
has the option (a) to demonstrate their truthfulness or accuracy even
if in the process he disclose his sources, or (b) to refuse, on the
ground that to do so would require such disclosure. In the latter
event, however, he must be ready to accept the consequences of
publishing untruthful or misleading stories the truth and accuracy of
which he is unwilling or made no bona fide effort to prove; for R.A.
53, as amended, is quite unequivocal that the right of refusal to
disclose sources is “without prejudice to **  statement of fact is not worthy of constitutional protection
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VOL. 243, APRIL 6, 1995  303
In Re: Emil P. Jurado
liability under civil and criminal laws.”
Same; Same; Same; Same; R.A. No. 53 confers no immunity from
prosecution for libel or for other sanction under the law. All it does
is give the journalist the right to refuse (or not to be compelled) to
reveal the source of any news report published by him which was
revealed to him in confidence.—RA No. 53 thus confers no immunity
from prosecution for libel or for other sanction under the law. It does
not declare that the publication of any news report or information
which was “related in confidence” to the journalist is not actionable;
such circumstance (of confidentiality) does not purge the publication
of its character as defamatory, if indeed it be such, and actionable on
that ground. All it does is give the journalist the right to refuse (or
not to be compelled) to reveal the source of any news report
published by him which was revealed to him in confidence.
Same; Same; Same; Same; False reports about a public official or
other person are not shielded from sanction by the cardinal right to
free speech in the Constitution.—It is worth stressing that false
reports about a public official or other person are not shielded from
sanction by the cardinal right to free speech enshrined in the
Constitution. Even the most liberal view of free speech has never
countenanced the publication of falsehoods, specially the persistent
and unmitigated dissemination of patent lies. The U.S. Supreme
Court, while asserting that “(u)nder the First Amendment there is no
such thing as a false idea,” and that “(h)owever pernicious an opinion
may seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other ideas” (citing a
passage from the first Inaugural Address of Thomas Jefferson),
nonetheless made the firm pronouncement that “there is no
constitutional value in false statements of fact,” and “the erroneous
(although) ** nevertheless inevitable in free debate.” “Neither the
intentional lie nor the careless error,” it said, “materially advances
society’s interest in ‘unhibited, robust, and wide-open’ debate on
public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed
2d 686, 95 ALR2d 1412. They belong to that category of utterances
which ‘are no essential part of any exposition of ideas, and are of
such slight social value as a step to the truth that any benefit that
may be derived from them is clearly outweighed by the social interest
in order and morality.’ Chaplinsky v. New Hampshire, 315 US 568,
572, 86 L Ed 1031, 62 S Ct 766 (1942).”
Same; Same; Same; Same; The knowingly false statement and the
false statement made with reckless disregard of the truth, do not
enjoy
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304 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
constitutional protection.—“The use of calculated falsehood,” it was
observed in another case, “would put a different cast on the
6
constitutional question. Although honest utterances, even if
inaccurate, may further the fruitful exercise of the right of free
speech, it does not follow that the lie, knowingly and deliberately
published about a public official, should enjoy a like immunity. ** **
(T)he knowingly false statement and the false statement made with
reckless disregard of the truth, do not enjoy constitutional
protection.”
Same; Same; Same; Same; Jurado’s actuations constitute
contempt of court, directly tending to degrade or abase the
administration of justice and the judges engaged in that function.—
Jurado’s actuations, in the context in which they were done,
demonstrate gross irresponsibility, and indifference to factual
accuracy and the injury that he might cause to the name and
reputation of those of whom he wrote. They constitute contempt of
court, directly tending as they do to degrade or abase the
administration of justice and the judges engaged in that function. By
doing them, he has placed himself beyond the circle of reputable,
decent and responsible journalists who live by their Code or the
“Golden Rule” and who strive at all times to maintain the prestige
and nobility of their calling.
MELO, J., Dissenting:
Constitutional Law; Freedom of Expression; Freedom of the
Press; In democratic governments, there must at all times be due
regard for the preservation of constitutional rights even to the
extent of seemingly sacrificing, as in the case at hand, accurate and
truthful media comment.—In making a choice between the
preservation of liberties and freedom, on one hand, and the
attainment of a better—ordered society, on the other, men have not
stopped debating. The balance, the point of the weighing scale, has
moved hither and thither depending on the needs of the times and on
the kind of government involved. But in democratic governments,
there must at all times be due regard for the preservation of
constitutional rights even to the extent, at times, of seemingly
sacrificing, as in the case at hand, accurate and truthful media
comment.
PUNO,J., Dissenting:
Constitutional Law; Freedom of the Press; Freedom of
Expression; Right of Refusal to Disclose Sources; R.A. No. 1477
approved on June 15, 1956 prohibits revelation of “the source of any
news-report on information related in confidence unless the court
or a House or commit-
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VOL. 243, APRIL 6, 1995 305 
In Re: Emil P. Jurado
tee of Congress finds that such revelation is demanded by the
security of the State.”—In the Philippines, the shield law is provided
by Republic Act No. 1477, approved on June 15, 1956 which prohibits
revelation of “thesource of any news-report or information ... related
in confidence ... unless the court or a House or committee of
Congress finds that such revelation is demanded by the security of
the State.” R.A. No. 1477 amended R.A. No. 53 by changing the
phrase “interest of the State” to “security of theState.” The change
limited the right of the State to share with newsmen their
confidential sources of information.
Same; Same; Same; Same; Exception; The protection of R.A. No.
53, as amended by R.A. No. 1477 to newsmen, provides but one
ground which can force a newsman to reveal the source of his
confidential information—when demanded by the security of the
State.—The protection of R.A. No. 53, as amended by R.A. No. 1477,
to newsmen should not be diminished as much as possible. Under
this law, there is only one but one clear ground which can force a
newsman to reveal the source of his confidential information—when
demanded by the security of the State. It is instructive to remember
the case of In re: Angel J. Parazo, where the Court adjudged
newsman Parazoin contempt of court for refusing to divulge the
source of his story regarding leakage of questions in some subjects in
the 1948 Bar Examinations. It was contended by Parazo that under
R.A. No. 53, he could only be compelled to reveal the source of his
information when the “revelation is demanded by the interest of the
State.”Parazoargued that “interest of the State” meant “security of
7
State.” The Court rejected Parazo’s argument as it held that the two
(2) terms are not synonymous, the first being broader than the
second. It then ruled that the maintenance of high standard of the
legal profession qualifies as an “interest of the State” the promotion
of which is a good ground to compel newsmen to break the
confidentiality of their sources of news. The Court ruling did not sit
well with Congress. On June 15, 1956, Congress enacted R.A. No.
1477 which amended R.A. 53 by changing the phrase “interest of the
State” to “security of State.”
Same; Same; Same; Same; Clear and Present Danger
Test; Evidence on record failed to prove clear and present danger
to the administration of justice, hence, there is no need to task
respondent to reveal the sources of his information.—To my mind,
the case at bench should be and can be resolved by simply
determining whether respondent’s columns, given their falsity and
slant, posed a clear and present danger to our administration of
justice. My humble submission is that the evidence on record failed
to prove this clear and present danger, and hence, there is no need to
task respondent to reveal the sources of his information in order to
prove that his reports about judicial corruption 
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In Re: Emil P. Jurado
are not patent falsehoods. The Court should always adopt an
approach that is less destructive of freedom of speech and of the
press. I reserve my full view on the longitude and latitude of a
newsman’s right not to reveal the sources of his information in a
more appropriate case.
Same; Same; Same; Same; Same; Sanctity of a newsman’s source
of information is not only intended to protect a newsman but also
the source of his information. When a person transmits confidential
information to a newsman, he is exercising his freedom of speech on
condition of anonymity.—There is another aspect of freedom of the
press which the majority failed to consider. The sanctity of a
newsman’s source of information is not only intended to protect a
newsman but also the source of his information. When a person
transmits confidential information to a newsman, he is exercising his
freedom of speech on condition of anonymity. In Talley v.
California, an ordinance which penalized the distribution of any
handbill which did not identify its author was struck down as
unconstitutional. It was held that “identificationand fear of reprisal
might deter perfectly peaceful discussions of public matters of
importance.” It is thus arguable that a newsman by himself does not
have the option to reveal or not to reveal the identity of his source of
information. His source may have an independent right to the
protection of his anonymity in the exercise of freedom of speech. This
issue, however, need not be resolved in the case at bench but in a
more appropriate setting. Be that as it may, I bewail the precipitate
majority ruling that a newsman has an unqualified option to reveal
the confidential source of his information for its inevitable effect is to
discourage people from giving confidential information to the press.
Again, the impairment of the flow of information to the public will
suffer an irreparable harm.
Same; Same; Same; Same; Same; In the absence of clear and
convincing evidence that respondent knowingly foisted a falsehood
to degrade administration of justice, Court should be slow in citing
him for contempt.—The majority opinion also failed to consider that
the columns of respondent dealt with the sensitive subject of
corruption in courts. It cannot be gainsaid that corruption in
government is a matter of highest concern to our citizenry. Yet it is a
problem that defies solution primarily because it is a subject where
people in the know maintain the countenance of a clam. Thus, the
prosecution of corruption in government has not hit a high note and
what now appears as the most effective restraint against corruption
in government is the fear of the light of print. If the light of print
continues to be a strong deterrent against government misdeeds, it is
mainly because newsmen have an unimpeded access to information.
On many an occasion, these confi-
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VOL. 243, APRIL 6, 1995 307 
8

In Re: Emil P. Jurado
dential sources of information are the only leads to government
malfeasance. To fashion a rule derogatory of the confidentiality of
newsmen’s sources will result in tremendous loss in the flow of this
rare and valuable information to the press and will prejudice the
State’s policy to eliminate corruption in government. In the absence
of clear and convincing evidence that respondent knowingly foisted a
falsehood to degrade our administration of justice, we should be slow
in citing him for contempt. The New York Times rule correctly
warned us that occasional erroneous statements are “inevitable in
free debate ... and must be protected if the freedoms of expression
are to have the ‘breathing space’ that they ‘need, to survive.’”
Same; Same; Same; Function of the Press; As agent of the people,
the most important function of the press is to inform and it cannot
do so if it is uninformed.—I submit that the majority misappreciates
the role of the press as a critic of government in a democratic society.
The Constitution did not conceive the press to act as the cheer
leader of government, including the judiciary. Rather, the press is
the agent of the people when it gathers news, especially news
derogatory to those who hold the reins of government. The agency is
necessary because the people must have all available information
before they exercise their sovereign judgment. As well observed: “The
newspapers, magazines, and other journals of the country, it is safe
to say, have shed and continue to shed, more light on the public and
business affairs of the nation than any other instrument of publicity;
and since informed public opinion is the most potent of all restraints
upon misgovernment the suppression or abridgment of the publicity
afforded by a free press cannot be regarded otherwise than with
grave concern.” As agent of the people, the most important function
of the press in a free society is to inform and it cannot inform if it is
uninformed. We should be wary when the independent sources of
information of the press dry up, for then the press will end up
printing “praise” releases and that is no way for the people to know
the truth.
Same; Same; Same; Right of Refusal to Disclose Sources; The
protection to the sanctity of the sources of information of the press
is for the benefit of the people. It is designed to benefit all of us to
keep us above the cloud of ignorance.—In sum, I submit that the
equation chosen by the majority has the pernicious effects of
hobbling the writing hand of newsmen and of chilling the sources of
information of the press. The majority can snicker against “bleeding
heart” liberalism but this is a vain attempt to use a fig leaf to conceal
its niggardly regard for freedom of speech and of the press. In a large
measure, I fear that the majority opinion will weaken the press as an
informed and informative source of 
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308 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
information of the sovereign people. In so doing, it will unwittingly
erode the people’s right to discover the truth. The protection we give
to the sanctity of the sources of information of the press is for the
benefit of the people. It is designed to benefit all of us, to keep us
above the cloud of ignorance. Democracy cannot bloom where
sovereignty is rooted on the top soil of an ignorant mass.
ADMINISTRATIVE MATTER in the Supreme Court. Contempt.
The facts are stated in the opinion of the Court.
NARVASA,C.J.:
Liability for published statements demonstrably false or misleading,
and derogatory of the courts and individual judges, is what is
involved in the proceeding at bar—than which, upon its facts, there is
perhaps no more appropriate setting for an inquiry into the limits of
press freedom as it relates to public comment about the courts and
their workings within a constitutional order.
. 1.Basic Postulates
9
To resolve the issue raised by those facts, application of fairly
elementary and self-evident postulates is all that is needed, these
being:
. 1)that the utterance or publication by a person of falsehoods
or half-truths, or of slanted or distorted versions of facts—or
accusations which he made no bonafide effort previously to verify,
and which he does not or disdains to prove—cannot be justified as a
legitimate exercise of the freedom of speech and of the press
guaranteed by the Constitution, and cannot be deemed an activity
shielded from sanction by that constitutional guaranty;
. 2)that such utterance or publication is also violative of “The
Philippine Journalist’s Code of Ethics” which inter alia commands
the journalist to “scrupulously report and interpret the news, taking
care not to suppress essential facts nor to distort the truth by
improper omission or emphasis,” and makes it his duty “to air the
other side and to
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VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
. correct substantive errors promptly;”1
. 3)that such an utterance or publication, when it is offensive
to the dignity and reputation of a Court or of the judge presiding over
it, or degrades or tends to place the courts in disrepute and disgrace
or otherwise to debase the administration of justice, constitutes
contempt of court and is punishable as such after due proceedings;
and
. 4)that prescinding from the obvious proposition that any
aggrieved party may file a complaint to declare the utterer or writer
in contempt, the initiation of appropriate contempt proceedings
against the latter by the court is not only its prerogative but indeed
its duty, imposed by the overmastering need to preserve and protect
its authority and the integrity, independence and dignity of the
nation’s judicial system.
. 2.Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes
in a newspaper of general circulation, the “Manila Standard.” He
describes himself as a columnist, who “incidentally happens to be a
lawyer,” remarking that while he values his membership in the law
profession, “such membership is neither a critical nor indispensable
adjunct in the exercise of his occupation as a newspaperman.”2 His
column in the “Manila Standard” is entitled “Opinion.”
Jurado had been writing about alleged improprieties and
irregularities in the judiciary over several months (from about
October, 1992 to March, 1993). Other journalists had also been
making reports or comments on the same subject. At the same time,
anonymous communications were being extensively circulated, by
hand and through the mail, about alleged venality and corruption in
the courts. And all these were being repeatedly and insistently
adverted to by certain sectors of society.
309
In light of these abnormal developments, the Chief Justice took an
extraordinary step. He issued Administrative Order No. 
_______________
1 SEE footnote 16, infra.
2 Jurado’s Supplemental Comment, March 15, 1993.
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310 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
10
11-93 dated January 25, 1993, “Creating an Ad Hoc Committee to
Investigate Reports of Corruption in the Judiciary,”3 reading as
follows:
“WHEREAS, the Court’s attention has been drawn to the many and
persistent rumors and unverified reports respecting corruption in the
judiciary, said rumors and reports not only having been mentioned
by media and in anonymous communications, but having also been
adverted to by certain government officials and civic leaders. NOW,
THEREFORE, by authority of the Court, an ad hoc committee is
hereby constituted composed of Chief Justice Andres R. Narvasa, as
Chairman, and former Justices of the Court, Hon. Lorenzo Relova
and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall
seek to ascertain the truth respecting said reports and statements,
and to this end, forthwith interview at closed-door sessions or
otherwise, such persons as may appear to it to have some knowledge
of the matter and who may be appealed to share that knowledge with
the Court, and otherwise gather such evidence as may be available.
The Committee is hereby authorized to use such facilities and
personnel of the court as may be necessary or convenient in the
fulfillment of its assigned mission, and shall submit its report to the
Court within thirty (30) days.”
Material to the present inquiry are Jurado’s published statements
from late 1992 to the middle of February, 1993.
. 1.In his column of October 21, 1992, he wrote of “(j)udges in
a number of regional trial courts in Metro Manila (who) have become
so notorious in their dealings with litigants and lawyers that they are
now called the ‘Magnificent
_______________
3 An additional paragraph was added by a subsequent administrative
order (No. 11-93-A, Feb. 1, 1993) to the effect that “(i)n the event that
the Chairman or any member of the Ad Hoc Committee be unable to
take part in its proceedings at any session or hearing thereof, or
should inhibit himself or herself therefrom, and to the end that the
proceedings before the Ad Hoc Committee be not thereby delayed,
Associate Justice Hilario G. Davide, Jr., Associate Justice Josue N.
Bellosillo, and retired Justice Irene R. Cortes are, by the Court’s
authority, designated Alternate Members of the Committee, to serve
thereon for such time or at such sessions or hearings as the Chief
Justice may determine.”
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VOL. 243, APRIL 6, 1995 311 
In Re: Emil P. Jurado
. Seven.’” He stated that “(i)t has come to a point where
lawyers and litigants try their darndest to stay away from these
judges. The answer, of course, is obvious.”
. 2.In his February 3, 1993 column, he adverted to another
group, also named “Magnificent Seven,” which, he said, should be
distinguished from the first. He wrote: “When lawyers speak of the
‘Magnificent Seven’ one has to make sure which group they are
referring to. Makati’s ‘Magnificent Seven’ are a bunch of Makati
regional trial court judges who fix drug-related cases. The
‘Magnificent Seven’ in the Supreme Court consists of a group of
justices who vote as one.”4
. 3.Aside from the “Magnificent Seven,” he also wrote about a
group which he dubbed the “Dirty Dozen.” In his column of October
21, 1992 he said that there are “** 12 judges who have acquired such
reputation for graft and corruption that they are collectively known
as the ‘dirty dozen.’ These judges, I am told, are not satisfied with
accepting bribes; they actually sell their decisions to the litigants that
offer the larger bribe. Each of these judges reportedly has go-
betweens who approach the litigants and ‘solicit’ their bids for what
is clearly an auction for the judge’s decision.”
. According to him, the most corrupt judges now are Makati’s
“Dirty Dozen” judges, supplanting some of those from Pasay. Pasig
and Quezon City; corruption in lower Courts had been admitted by
an Executive Judge in a Metro Manila Regional Trial Court (column
11
of November 9, 1992); and because the “Dirty Dozen” had given
Makati the reputation of having the most corrupt RTC in the country,
multinationals and financing institutions explicitly stipulate in their
agreements that litigation in connection with these contracts may be
held anywhere in Metro Manila except in Makati; and lawyers
confirm that Makati Judges, including some persons in the sheriff’s
office, are the most corrupt, where before, Pasay and Quezon City
had that dubious distinction (column of December 1, 1992).
_______________
4 SEE footnotes 12 and 19, infra.
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312 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
. 4.In his November 9, 1992 column, he wrote about “a former
appellate justice (who) ‘holds office’ at a restaurant near the Court of
Appeals building. He is known as the contact man of five CA
divisions. Lawyers say that this former jurist really delivers.” In his
column of January 29, 1993, he adverted to the same unnamed
former Justice as being “known for fixing cases for five CA divisions
(that is what he tells lawyers and litigants) for a fee. And if the price
is right, the lawyer of the litigant paying can even write his own
decision using a CA justice as ponente. This ex-justice holds court at
the mezzanine of a restaurant owned by the wife of a former Marcos
cabinet member and which has become a meeting place for judges,
CA justices, practising lawyers, prosecutors and even Supreme Court
justices. The former CA justice also has his own Chinese contact.
After I exposed this last year, the habitues became scarce. But they
are back again, and the ex-justice is still doing brisk business.”
. 5.In his column of March 24, 1993, he made the claim that
one can “get a temporary restraining order from a regional trial court
in Metro-Manila by paying the judge anywhere between P30,000.00
and P50,000.00.”
Other columns of Jurado refer to:
. a)a police report from the South Capital Command ** (to the
effect) that 8 Makati judges were paid for decisions favoring drug-
traffickers and other big-time criminals, naming the judges and
giving detailed accounts of the bribery (January 30, 1993);
. b)a bank, later identified by him as the Equitable Banking
Corporation (Ermita Branch), which had “hosted a lunch at its
penthouse mainly for some justices, judges, prosecutors and law
practitioners” (January 12, 1993);5
. c)the lady secretary of an RTC Judge in Makati who allegedly
makes sure, for a fee of P10,000.00 or more, depending on how
much money is at stake, that a case is raffled off to a Judge who will
be “extremely sympathetic,”
_______________
5 SEE footnote 10, infra.
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VOL. 243, APRIL 6, 1995 313
In Re: Emil P. Jurado
. and can arrange to have the Court issue attachments or
injunctions for a service fee of 1% over and above the regular
premium of the attachment or injunction bond; a Chinese-Filipino
businessman who paid this “miracle worker” P300,000.00 on top of
12
the regular premium on the attachment/injunction bond (October
27, 1992);
. d)Executive Judge de la Rosa, who “has unilaterally decided
to discard the rule that cases seeking provisional remedies should be
raffled off to the judges,” thus violating the rule that no case may be
assigned in multi-sala courts without a raffle (January 28, 1993); and
. e)the Secretary of the Judicial and Bar Council (JBC), who
had supposedly gotten that body to nominate him to the Court of
Appeals; and a son and a nephew of JBC members, who were also
nominated to the Court of Appeals, contrary to ethics
and delicadeza (January 16, 1993; January 29, 1993); and
. f)what he denominates “a major determinant of promotion,”
i.e., having a relative in the JBC or the Supreme Court, or having a
powerful politician as sponsor, citing specifically, the following
nominees to the Court of Appeals—Conrado Vasquez, Jr., son and
namesake of the Ombudsman and brother of the head of the
Presidential Management Staff; Rosalio de la Rosa, “nephew of
Justice Relova and cousin of Chief Justice Narvasa”; and the fact that
nomination of some worthy individuals was blocked because they
“incurred the ire of the powers that be,” e.g., Judge Maximiano
Asuncion, Quezon City RTC, and Raul Victorino, closely identified
with former Senate President Salonga (January 25, 1993).
. 3.Events Directly Giving Rise to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by
the decision promulgated by this Court on August 27, 1992, in the so-
called “controversial case” of “Philippine Long Distance Telephone
Company v. Eastern Telephone Philippines, Inc. (ETPI),” G.R. No.
94374. In that decision the Court was sharply divided; the vote was 9
to 4, in favor of the petitioner PLDT. Mr Justice Hugo E. Gutierrez,
Jr. wrote the opinion for the major-
314
314 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
ity.6 A motion for reconsideration of the decision was filed in
respondent’s behalf on September 16, 1992, which has recently been
resolved.
In connection with this case, G.R. No. 94374, the “Philippine Daily
Inquirer” and one or two other newspapers published, on January
28, 1993, a report of the purported affidavit of a Mr. David Miles
Yerkes, an alleged expert in linguistics. This gentleman, it appears,
had been commissioned by one of the parties in the case, Eastern
Telephone Philippines, Inc. (ETPI), to examine and analyze the
decision of Justice Gutierrez in relation to a few of his
prior ponencias and the writings of one of the lawyers of PLDT, Mr.
Eliseo Alampay, to ascertain if the decision had been written, in
whole or in part, by the latter. Yerkes proffered the conclusion that
the Gutierrez decision “looks, reads and sounds like the writing of the
PLDT’s counsel.”7
As might be expected, the Yerkes “revelations” spawned more public
discussion and comment about the judiciary and the Supreme Court
itself, much of it unfavorable. There were calls for impeachment of
the justices, for resignation of judges. There were insistent and more
widespread reiterations of denunciations of incompetence and
corruption in the judiciary. Another derogatory epithet for judges
was coined and quickly gained currency: “Hood-lums in Robes.”
It was at about this time and under these circumstances—particularly
the furor caused by the Yerkes opinion that the PLDT decision was
authored by a PLDT lawyer—that Jurado wrote in his column on
February 8, 1993, an item entitled, “Who will judge the Justices?”
referring among other things to” ** (a) report that six justices, their
spouses, children and grandchildren (a total of 36 persons) spent a
vacation in Hong Kong some
_______________
6 213 SCRA 16.
13
7 ETPI counsel, former Solicitor General Estelito Mendoza and
former Law Dean Eduardo de los Angeles, have since declared that
none of the lawyers or officers of the corporation had ever authorized
the release of the Yerkes affidavit. In any event, Mr. Justice Gutierrez
has since made public his own affidavit in indignant traverse of the
Yerkes document; and two (2) other experts, commissioned by the
PLDT, have submitted studies and reports impugning the Yerkes
conclusions.
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In Re: Emil P. Jurado
time last year—andthat luxurious hotel accommodations and all
their other expenses were paid by a public utility firm ** and that
the trip ** was arranged by the travel agency patronized by this
public utility firm.’”8
This was the event that directly gave rise to the proceeding at bar.
. a.Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson,
First Vice President of the PLDT (Philippine Long Distance
Telephone Company), addressed a letter to the Chief Justice,
submitting his sworn statement in confutation of “the item in the
column of Mr. Emil P. Jurado of the Manila Standard on a vacation
trip supposedly taken by six Justices with their families last year,”
and requesting that the Court “take such action as may be
appropriate.” In his affidavit, Samson made the following
averments:9
“* * *.
While the name of the public utility which supposedly financed the
alleged vacation of the Justices in HongKong has not been disclosed
in the Jurado column, the publication thereof, taken in relation to
the spate of recent newspaper reports alleging that the decision of the
Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the
pending case involving the PLDT and Eastern Telecommunications
Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives
rise to the innuendo or unfair inference that Emil Jurado is alluding
to PLDT in the said column; and, this in fact was the impression or
perception of those who talked to me and the other officers of the
PLDT after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications
315 Philippines is still sub-judice, since the motions for reconsideration
filed by the losing litigants therein, Eastern Telecommunications
Philippines, Inc. and NTC are still pending before the Court, we have
tried to refrain from making any public comments on these matters,
lest any statement we make be interpreted to be an attempt on our
part
_______________
8 Italics and underscoring supplied.
9 Italics supplied.
316
316 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
to unduly influence the final decision of the Supreme Court in the
above described case. However in the interest of truth and justice,
PLDT is compelled to emphatically and categorically declare that it is
not the public utility firm referred to in the Jurado column and that
specifically, it has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family
during their vacation, if any, in Hongkong last year. It is not even
14
aware that any of the justices or their families have made the trip
referred to in the Jurado column;
. 5.I further state that neither Atty. Emil P. Jurado nor any
one in his behalf has ever spoken to me or any other responsible
officer of PLDT about the matter quoted in par. 2 hereof;
. 6.PLDT further emphatically and categorically denies that
it had ever talked to or made arrangements with any travel agency
or any person or entity in connection with any such alleged trip of
the Justices and their families to Hongkong, much less paid
anything therefor to such agencies, fully or in part, in the year 1992
as referred to in Par. 2 hereinabove;
. 7.The travel agencies which PLDT patronizes or retains for
the trips, hotels or other accommodations of its officers and
employees are:
. a.Philway Travel Corporation, M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village Makati, Metro Manila
. b.Citi-World Travel Mart Corp., Suite 3-4 Ramada Midtown
Arcade M. Adriatico Street, Ermita, Manila
The records of these travel agencies will bear out the fact that no
arrangements were made by them at the instance of PLDT for the
trip referred to in the Jurado column.
. b.Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court
by Atty. William Veto, the “in-house counsel of Equitable Banking
Corporation since 1958,” subscribed and sworn to on February 10,
1993, in relation to another article of Jurado.10 Veto deposed that on
Tuesday, January 5, 1993 he had “hosted a lunch party at the
Officers’ Lounge, 7th Floor of the Equitable BankingCorporation
Building, Ermita Branch ** upon prior permission ** obtained”; that
the “expenses for said party were exclusively from my personal funds
and the food was prepared in my house by my wife and served by my
house help ** and four (4) 
_______________
10 SEE footnote 5, supra.
317
VOL. 243, APRIL 6, 1995 317
In Re: Emil P. Jurado
waiters ** hired from the nearby Barrio Fiesta Restaurant”; that
among the invited guests “were members of the Supreme Court and
Court of Appeals who ** were my friends of forty years since our days
in law school”; and that the party was held in the lounge of the bank
instead of in “my residence” “unlike in former years ** because my
birthday happened to fall on a working day and my friends from the
Equitable Banking Corporation ** suggested that I hold it there (at
the lounge) for their convenience because my residence is far from
down town.”
However, this birthday luncheon of Atty. Veto was reported in
Jurado’s column (in the Manila Standard issues of January 12 and
28, 1993) as having been “hosted (by the Equitable Bank) at its
penthouse mainly for some justices, judges, prosecutors and law
practitioners **.” And upon this premise, Jurado indulged in the
following pontification: “When those in the judiciary fraternize this
way, what chances before the courts do other lawyers, who are
not ‘batang club,’ have against others who belong to the fraternity?
In the case of prosecutors and fiscals, what chances do opposing
counsels have against those in the fraternity?” (column of January
12, 1993)
. c.Information from Ad Hoc Committee
At about this time, too, the Court received information from theAd
Hoc Committee (created by Administrative Order No. 11-93) to the
following effect:
15
. 1)that by letter dated February 1, 1993, the Chairman of
the Ad Hoc Committee extended an invitation to Atty. Emiliano
Jurado to appear before it ‘at 2 o’clock in the afternoon of February
4, 1993 ** (to) give the committee information that will assist it in its
task,” i.e., to definitely and accurately determine the facts as regards
the published rumors and reports of corruption in the judiciary;
. 2)that despite receipt of this letter by a responsible
individual at the business address of Jurado, the latter failed to
appear at the time and place indicated; that instead, in his column in
the issue of Manila Standard of February 4, 1993, Jurado stated that
he was told he was being summoned by the Ad HocCommittee,
but “(t)here is really no need to summon me. The committee can go
by the many things I have written in my column about corruption
in the judiciary. Many of these column items have been borne out by
subsequent events.”
318
318 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
. 3)that another letter was sent by the Chairman to Jurado,
dated February 5, 1993, reiterating the Committee’s invitation, viz.:
“It is regretted that you failed to respond to the invitation of the Ad
Hoc Committee to appear at its session of February 4, 1992. All
indications are that you are the person with the most knowledge
about corruption in the judiciary and hence, appear to be best
positioned to assist the Ad Hoc Committee in its function of
obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid
itself of the incompetents and the misfits in its ranks, and we believe
you will want to help the Court do precisely that, by furnishing the
Committee with competent evidence, testimonial or otherwise.
Clearly, the purging process cannot be accomplished without proof,
testimonial or otherwise, as you must no doubt realize, being yourself
a lawyer.
We would like you to know that the Ad Hoc Committee created by
Administrative Order No. 11-93 is simply a fact-finding body. Its
function is evidence-gathering. Although possessed of the authority
to maintain and enforce order in its proceedings, and to compel
obedience to its processes, it is not an adjudicative body in the sense
that it will pronounce persons guilty or innocent, or impose
sanctions, on the basis of such proofs as may be presented to it. That
function is reserved to the Supreme Court itself, in which it is lodged
by the Constitution and the laws. Thus, at the conclusion of its
evidence-gathering mission, the Ad Hoc Committee will submit its
report and recommendations to the Court which will then take such
action as it deems appropriate.
TheAd Hoc Committee has scheduled hearings on the 11th and 12th
of February, 1993. Mr. Justice Hilario G. Davide, Jr. will preside as
Chairman at these hearings since I will be unable to do so in view of
earlier commitments. We reiterate our invitation that you come
before the Committee, and you may opt to appear either on the 11th
or 12th of February, 1993, at 2 o’clock in the afternoon.”
. 4)that notwithstanding receipt of this second letter by a
certain Mr. Gerry Gil of the Manila Standard, Jurado still failed to
appear.
. 4.Statement of the Case: Resolutions and Pleadings
. a.Resolution of February 16, 1993
After considering all these circumstances, the Court by Resolution
dated February 16, 1993, ordered:
. 1)that the matter dealt with in the letter and affidavit of the
PLDT herein mentioned be duly DOCKETED, and hereafter consid-
319
16

VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
. ered and acted upon as an official Court proceeding for the
determination of whether or not the allegations made by Atty. Emil
Jurado herein specified are true;
. 2)that the Clerk of Court SEND COPIES of the PLDT letter
and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil
Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area,
Manila; and copies of the same PLDT letter and affidavit, to Philway
Travel Corporation, M-7 Prince Tower Cond., Tordesillas St., Salcedo
Village, Makati, Metro Manila; and Citi-World Travel Mart Corp.,
Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street, Ermita,
Manila;
. 3)that within five (5) days from their receipt of notice of this
resolution and of copies of the PLDT letter and affidavit, the Philway
Travel Corporation and the Citi-World Travel Mart Corporation each
FILE A SWORN STATEMENT affirming or denying the contents of
the PLDT affidavit; and
. 4)that within fifteen (15) days from his receipt of notice of
this resolution and of copies of said PLDT letter and affidavit and of
the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on
said affidavits as well as the allegations made by him in his columns,
herein specified, in which he shall make known to the Court the
factual or evidentiary bases of said allegations.
. b.Jurado’s Comment dated March 1, 1993
As directed, Jurado filed his comment, dated March 1, 1993.
He explained that he had not “snubbed” the invitation of the Ad
Hoc Committee, it being in fact his desire to cooperate in any
investigation on corruption in the judiciary as this was what “his
columns have always wanted to provoke.” What had happened,
319 according to him, was that the first invitation of the Ad
Hoc Committee was routed to his desk at the Manila Standard office
on the day of the hearing itself, when it was already impossible to
cancel previous professional and business appointments; and the
second invitation, “if it was ever received” by his office, was never
routed to him, and he had yet to see it.11 If the impression had 
_______________
11 N.B. However, in his column of Feb. 4, 1993, he had written:
“There is really no need (for the Ad HocCommittee) to summon me.
The committee can go by the many things I have written in my
column about corruption in the judiciary **.”
320
320 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
been created that he had indeed “snubbed” the Ad Hoc Committee,
he “sincerely apologizes.”
He averred that his columns are self-explanatory and reflect his
beliefs, and there was no need to elaborate further on what he had
written. He expressed his firm belief that justice can be administered
only by a judicial system that is itself just and incorruptible, and the
hope that this Court would view his response in this light.
He also made the following specific observations:
. 1.The affidavit of Antonio Samson of the PLDT dated
February 9, 1993 was an assertion of the affiant’s belief and opinion
and he (Jurado) would not comment on it except to say that while
Mr. Samson is entitled to his beliefs and opinions, these “bind only
him and the PLDT.”
17
. 2.Atty. William Veto’s affidavit substantially corroborated
what he had written in vital details; hence, further substantiation
would be surplusage. In fact, the Supreme Court had confirmed the
story in its press statement quoted by him (Jurado) in his January
30, 1993 column. His column about the Veto party constitutes fair
comment on the public conduct of public officers.
. 3.The column about Executive Judge Rosalio de la Rosa
merely summarized the position of Judge Teresita Dy-Liaco Flores
on the actuations of Judge de la Rosa and called the attention of the
Court thereto, Judge Flores’ complaint, a copy of which had been
sent to the Court Administrator, being one meriting its attention.
. 4.The “factual and evidentiary basis” of his column of
January 30, 1993 was the police report on seven (7) Makati judges
authored by Chief Inspector Laciste Jr., of the Narcotics Branch of
the RPIU, South CAPCOM, PNP, addressed to Vice-President Joseph
E. Estrada, a copy of which he had received in the newsroom of the
Manila Standard. The existence of the report had been affirmed by a
reporter of the Manila Standard, Jun Burgos, when he appeared at
the hearing of the Ad Hoc Committee on January 11, 1993.
. 5.His observations in his columns of January 6 and 29, 1993
regarding the nominations of relatives in the Judicial
321
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
. and Bar Council echo the public perception, and constitute
fair comment on a matter of great public interest and concern.
. 6.His columns with respect to the “RTC’s Magnificent Seven”
(October 20, 1992); the “RTC-Makati’s Dirty Dozen” (October 2,
1992, November 9, 1992, and December 1, 1992); the “Magnificent
Seven” in the Supreme Court (February 3, 1993);12 the lady secretary
of an RTC Judge (October 27, 1992); and the former Court of Appeals
Justice “fixing” cases (January 29, 1993) were all based on
information give to him in strict confidence by sources he takes to be
highly reliable and credible; and he could not elaborate on the factual
and evidentiary basis of the information without endangering his
sources. 
By necessity and custom and usage, he relies as a journalist not only
on first-hand knowledge but also on information from sources he has
found by experience to be trustworthy. He cannot compromise these
sources. He invokes Republic Act No. 53, as amended by R.A. No.
1477, exempting the publisher, editor or reporter of any publication
from revealing the source of published news or information obtained
in confidence, and points out that none of the matters subject of his
columns has any bearing on the security of the state.
. c.Resolution of March 2, 1993
Subsequent to the Resolution of February 16, 1993 and before the
filing of Jurado’s comment above mentioned, the Court received the
affidavits of the executive officials of the two travel agencies
mentioned in the affidavit of PLDT Executive Vice-President Vicente
R. Samson—in relation to the Jurado column of February 8, 1993:
that of Mr. Ermin Garcia, Jr., President of the Citi-World Travel Mart
Corporation, dated February 22, 1993, and that of Mrs. Marissa de la
Paz, General Manager of Philway Travel Corporation, dated February
19, 1993. Both denied ever having made any travel arrangements for
321 any of the Justices of the Supreme Court or their families to
Hongkong,
_______________
12 SEE footnotes 4, supra, and 19, infra.
322
322 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
18
clearly and categorically belying the Jurado article.
By Resolution dated March 2, 1993, the Court directed that Jurado
be given copies of these two (2) affidavits and that he submit
comment thereon, if desired, within ten (10) days from receipt
thereof.
. d.Jurado’s Supplemental Comment with Request for
Clarification
In response, Jurado filed a pleading entitled “Supplemental
Comment with Request for Clarification” dated March 15, 1993. In
this pleading he alleged that the sworn statements of Mr. Ermin
Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters of
their own personal knowledge; that he (Jurado) had no specific
knowledge of “the contents of these, let alone their veracity”; and that
the affidavits “bind no one except the affiants and possibly the
PLDT.” He also sought clarification on two points—as to the capacity
in which he is being cited in these administrative proceedings—
whether “as full time journalist or as a member of the bar,” and why
he is being singled out, from all his other colleagues in media who
had also written about wrongdoings in the judiciary, and required to
comment in a specific administrative matter before the Court
sitting En Banc—so that he might “qualify his comment and/or
assert his right and privileges **.”
. e.Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court
directed the Clerk of Court to inform Jurado that the Resolutions of
February 16 and March 2, 1993 had been addressed to him
(according to his own depiction) in his capacity as “a full-time
journalist” “who coincidentally happens to be a member of the bar at
the same time,” and granted him fifteen (15) days from notice “to
qualify his comment and/or assert his rights and privileges ** in an
appropriate manifestation or pleading.”
. f.Jurado’s Manifestation dated March 31, 1993
Again in response, Jurado filed a “Manifestation” under date of
March 31, 1993. He moved for the termination of the proceed-
323
VOL. 243, APRIL 6, 1995 323
In Re: Emil P. Jurado
ing on the following posited premises:
. 1.The court has no administrative supervision over him as a
member of the press or over his work as a journalist.
. 2.The present administrative matter is not a citation for (a)
direct contempt as there is no pending cases or proceeding out of
which a direct contempt charge against him may arise, or (b) indirect
contempt as no formal charge for the same has been laid before the
court in accordance with Section 3 (Rule 71) of the Rules of Court.
. 3.His comments would be more relevant and helpful to the
Court if taken together with the other evidence and reports of other
journalists gathered before the Ad Hoc Committee. He perceives no
reason why his comments should be singled out and taken up in a
separate administrative proceeding.
It is against this background of the material facts and occurrences
that the Court will determine Jurado’s liability, if any, for the above
mentioned statements published by him, as well as “such action as
may be appropriate” in the premises, as the PLDT asks.
. 5.Norms for Proper Exercise of Press Freedom
. a.Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court
underscored the importance both of the constitutional guarantee of
free speech and the reality that there are fundamental and equally
19
important public interests which need on occasion to be balanced
against and accommodated with one and the other. There, the Court
stressed the importance of the public interest in the maintenance of
the integrity and orderly functioning of the administration of justice.
The Court said:13
“The principal defense of respondent Gonzalez is that he was merely
exercising his constitutional right of free speech. He also in-
_______________
13 166 SCRA at 353-355; emphasis in the original.
324
324 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
vokes the related doctrines of qualified privileged communications
and fair criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of
free speech. No one seeks to deny him that right, least of all this
Court. What respondent seems unaware of is that freedom of speech
and of expression, like all constitutional freedoms, is not absolute
and that freedom of expression needs on occasion to be adjusted to
and accommodated with the requirements of equally important
public interests. One of these fundamental public interests is the
maintenance of the integrity and orderly functioning of the
administration of justice. There is no antinomy between free
expression and the integrity of the system of administering justice.
For the protection and maintenance of freedom of expression itself
can be secured only within the context of a functioning and orderly
system of dispensing justice, within the context, in other words, of
viable independent institutions for delivery of justice which are
accepted by the general community. As Mr. Justice Frankfurter put
it:
‘*** A free press is not to be preferred to an independent judiciary,
nor an independent judiciary to a free press. Neither has primacy
over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent
judiciary through which that freedom may, if necessary, be
vindicated. And one of the potent means for assuring judges their
independence is a free press.’ (Concurring in Pennekamp v.
Florida, 328 U.S. 331 at 354-356 [1946]).
Mr. Justice Malcolm of this Court expressed the same thought in the
following terms:
“The Organic Act wisely guarantees freedom of speech and press.
This constitutional right must be protected in its fullest extent. The
Court has heretofore given evidence of its tolerant regard for
charges under the Libel Law which come dangerously close to its
violation. We shall continue in this chosen path. The liberty of the
citizens must be preserved in all of its completeness.But license or
abuse of liberty of the press and of the citizens should not be
confused with liberty in its true sense. As important as is the
maintenance of an unmuzzled press and the free exercise of the
rights of the citizens is the maintenance of the independence of the
Judiciary. Respect for the Judiciary cannot be had if persons are
privileged to scorn a resolution of the court adopted for good
purposes, and if such persons are to be permitted by subterranean
means to diffuse inaccurate accounts of confidential proceedings to
the embarrassment of the parties and the
325
VOL. 243, APRIL 6, 1995 325 
In Re: Emil P. Jurado
court.’ (In Re Severino Lozano and Anastacio Quevedo, 54 Phil. 801
at 807 [1930]).”
20
. b.Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper
exercise of any right, constitutional or otherwise, viz.:
“ART.19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.”
The provision is reflective of the universally accepted precept of
“abuse of rights,” “one of the most dominant principles which must
be deemed always implied in any system of law.”14 It parallels too
“the supreme norms of justice which the law develops” and which are
expressed in three familiar Latin maxims: honeste vivere, alterum
non laedere and jus suum quique tribuere (to live honorably, not to
injure others, and to render to every man his due).15
Freedom of expression, the right of speech and of the press is, to be
sure, among the most zealously protected rights in the Constitution.
But every person exercising it is, as the Civil Code stresses, obliged
“to act with justice, give everyone his due, and observe honesty and
good faith.” The constitutional right of freedom of expression may
not be availed of to broadcast lies or half-truths—this would not be
“to observe honesty and good faith”; it may not be used to insult
others, destroy their name or reputation or bring them into disrepute
—this would not be “to act with justice” or “give everyone his due.”
. c.Philippine Journalist’s Code of Ethics
Also relevant to the determination of the propriety of Jurado’s acts
subject of the inquiry at bar are the norms laid down in “The
Philippine Journalist’s Code of Ethics.” The Code was published  the prosecution and then the defense. A news story or editorial
_______________
14 Tolentino, The Civil Code of the Philippines, Commentaries and
Jurisprudence, 1983 ed., Vol. 1, p. 71, citing 1 Cammarota 159.
15 Op. cit., at p. 63, citing Borrell Macia, pp. 87-89.
326
326 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
in the issue of February 11, 1993 of the Manila Standard, for which
Jurado writes, as part of the paper’s “Anniversary Supplement.” The
first paragraph of the Code,16 and its corresponding annotations,
read as follows:
. “I.I shall scrupulously report and interpret the
news, taking care not to suppress essential facts nor to
distort the truth by improper omission or emphasis. I
recognize the duty to air the other side and the duty to
correct substantive errors promptly.
. 1.Scrupulous news gathering and beat coverage is required.
Relying exclusively on the telephone or on what fellow reporters say
happened at one’s beat is irresponsible.
. 2.The ethical journalist does not bend the facts to suit his
biases or to please benefactors. He gathers all the facts, forms a
hypothesis, verifies it and arrives at an honest interpretation of what
happened.
. 3.The duty to air the other side means that the journalist
must contact the person or persons against whom accusations are
lodged. A court proceeding provides for this balance by presenting
column that fails to present the other side is like a court that does not
hear the side of the defense.
. 4.Correcting substantive errors is the mark of mature
newspapers like the New York Times, the International Herald
Tribune, and some of Manila’s papers.”
21
. d.Right to Private Honor and Reputation
In the present proceeding, there is also involved an acknowledged
and important interest of individual persons: the right to private
reputation. Judges, by becoming such, are commonly and rightly
regarded as voluntarily subjecting themselves to norms of conduct
which embody more stringent standards of honesty, integrity, and
competence than are commonly required from private
persons.17 Nevertheless, persons who seek or accept  in ascertaining the truth of the statements they publish. The norm
_______________
16 SEE footnote 1, page 2, supra.
17 E.g., Castillo v. Calanog, Jr., 199 SCRA 75 (1991); Patricia T. Junio
v. Judge Pedro C. Rivera, Jr., A.M. No. MTJ-91-565, Aug. 30,
1993; Media v. Pamaran, 160 SCRA 457 (1988); Office of the Court
Administrator v. Gaticales, 208 SCRA 508 (1992); Vistan v. Nicolas,
327
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
appointment to the Judiciary cannot reasonably be regarded as
having thereby forfeited any right whatsoever to private honor and
reputation. For so to rule will be simply, in the generality of cases, to
discourage all save those who feel no need to maintain their self-
respect as a human being in society, from becoming judges, with
obviously grievous consequences for the quality of our judges and the
quality of the justice that they will dispense. Thus, the protection of
the right of individual persons to private reputations is also a matter
of public interest and must be reckoned with as a factor in identifying
and laying down the norms concerning the exercise of press freedom
and free speech.
Clearly, the public interest involved in freedom of speech and the
individual interest of judges (and for that matter, all other public
officials) in the maintenance of private honor and reputation need to
be accommodated one to the other. And the point of adjustment or
accommodation between these two legitimate interests is precisely
found in the norm which requires those who, invoking freedom of
speech, publish statements which are clearly defamatory to
identifiable judges or other public officials to exercisebona fide care
does not require that a journalist guarantee the truth of what he says
or publishes. But the norm does prohibit therecklessdisregard of
private reputation by publishing or circulating defamatory
statements without any bona fide effort to ascertain the truth
thereof. That this norm represents the generally accepted point of
balance or adjustment between the two interests involved is clear
from a consideration of both the pertinent civil law norms and the
Code of Ethics adopted by the journalism profession in the
Philippines.17a
. 6.Analysis of Jurado Columns
. a.Re “Public Utility Firm”
327
Now, Jurado’s allegation in his column of February 8, 1993—“that six
justices, their spouses, children and grandchil-
_______________
201 SCRA 524 (1991); NISA v. Tablang, 199 SCRA 766 (1991).
17a SEE,e.g., Ayer Productions Pty. Ltd v. Capulong, 160 SCRA
861 (1988).
328
328 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
22
dren (a total of 36 persons) spent a vacation in Hong Kong some time _______________
last year—andthat luxurious hotel accommodations and all their
other expenses were paid by a public utility firm and that the trip 18 SEE footnote 6, supra.
reportedly was arranged by the travel agency patronized by this
public utility firm,” supra, is—in the context of the facts under which
329
it was made—easily and quickly preceived as a transparent
accusation that the PLDT had bribed or “rewarded” six (6) justices
for their votes in its favor in the case of “Philippine Long Distance VOL. 243, APRIL 6, 1995 329
Telephone Company v. Eastern Telephone Philippines, Inc.
(ETPI),” G.R. No. 94374,18 by not only paying all their expenses— In Re: Emil P. Jurado
i.e., hotel accommodations and all other expenses for the trip—but
also by having one of its own travel agencies arrange for such a trip.
perception of those who talked to me and the other officers of the
PLDT after having read the Jurado column.”
As already stated, that allegation was condemned as a lie, an outright
fabrication, by the PLDT itself, through one of its responsible
The record shows that he made no effort whatsoever to impugn,
officers, Mr. Vicente Samson, as well as by the heads of the two (2)
travel agencies “patronized by it,” Ermin Garcia, Jr. and Marissa de modify, clarify or explain Samson’s positive assertion that:
la Paz, supra.
“ ** (the PLDT) has never paid for any such trip, hotel or other
That categorical denial logically and justly placed on Jurado the accommodations for any justice of the Supreme Court or his family
during their vacation, if any, in Hongkong last year. It is not even
burden of proving the truth of his grave accusation, or showing that
it had been made through some honest mistake or error committed aware that any of the justices or their families have made the trip
referred to in the Jurado column;
despite good faith efforts to arrive at the truth, or if unable to do
either of these things, to offer to atone for the harm caused.
** neither Atty. Emil P. Jurado nor any one in his behalf has ever
spoken to me or any other responsible officer of PLDT about the
But the record discloses that Jurado did none of these things. He
exerted no effort whatever to contest or qualify in any manner matter ** **;
whatever the emphatic declaration of PLDT Vice-President Samson
that— ** PLDT ** ** (never) talked to or made arrangements with any
travel agency or any person or entity in connection with any such
alleged trip of the Justices and their families to Hongkong, much
While the name of the public utility which supposedly financed the
alleged vacation of the Justices in Hong Kong has not been disclosed less paid anything therefor to such agencies, fully or in part, in the
year 1992 as referred to in Par. 2 hereinabove;
in the Jurado column, the publication thereof, taken in relation to
the spate of recent newspaper reports alleging that the decision of the
Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the What appears from the record is that without first having made an
pending case involving the PLDT and Eastern Telecommunications effort to talk to any one from the PLDT or the Supreme Court to
Phil., Inc. was supposedly ghost written by a lawyer of PLDT, gives ascertain the veracity of his serious accusation, Jurado went ahead
rise to the innuendo or unfair inference that Emil Jurado is alluding and published it.
to PLDT in the said column; and, this in fact was the impression or

23
His explanation for having aired the accusation consists simply of a
declaration that Samson’s affidavit, as well as the affidavits of the
heads of the two travel agencies regularly patronized by it, were just
assertions of the affiants’ belief and opinion; and that he (Jurado)
would not comment on them except to say that while they are
entitled to their beliefs and opinions, these were binding on them
only. This is upon its face evasion of duty of the most cavalier kind;
sophistry of the most arrant sort. What is made plain is that Jurado
is in truth unable to challenge any of the averments in the affidavits
of PLDT and its travel agencies, or otherwise substantiate his
accusation, and that his is a mere resort to semantics to justify the
unjustifiable. What is made plain is that his accusation is false, and
possesses not even the saving grace of honest error.
If relying on second-hand sources of information is, as the
Journalists’ Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to  later report. If he did, he would quickly have learned that his sources,
330
330 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
“present the other side” is equally reprehensible, being what in law
amounts to a denial of due process.
. b.Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of
the birthday luncheon given by Atty. William Veto (the “in-house
counsel of Equitable Banking Corporation since 1958”) as to project a
completely false depiction of it. His description of that affair (in the
Manila Standard issues of January 12 and 28, 1993) as having been
hosted by the Equitable Bank “at its penthouse mainly for some
justices, judges, prosecutors and law practitioners **,” carries the
sanctimonious postscript already quoted, putting the rhetorical
question about how such fraternization affects the chances in court of
lawyers outside that charmed circle.
When confronted with Veto’s affidavit to the effect that the party was
given by him at his (Veto’s) own expense, the food having been
prepared by his wife in his house, and served by his house help and
waiters privately hired by him; that he had invited many persons
including friends of long standing, among them justices of the
Supreme Court and the Court of Appeals; and that the party had
been held in the Officers’ Lounge of Equitable Bank, instead of his
home, as in years past, to suit the convenience of his guests because
his birthday fell on a working day, Jurado could not, or would not
deign to, contradict any of those statements. He merely stated that
Veto’s affidavit substantially corroborated what he had written in
vital details, which is obviously far from correct.
Most importantly, the record does not show that before he published
that story, Jurado ever got in touch with Veto or anyone in Equitable
Bank, Ermita Branch, to determine the accuracy of what he would
whoever or whatever they were, were not to be relied upon. If he did
not, he was gravely at fault—at the very least for disregarding the
Journalist’s Code of Ethics—in failing to exert bona fide efforts to
verify the accuracy of his information.
In either case, his publication of the slanted, therefore misleading
and false, report of the affair is censurable. His proffered
331
VOL. 243, APRIL 6, 1995 331
In Re: Emil P. Jurado
explanation: that the justices having confirmed their presence at the
luncheon, thus corroborating what he had written in vital details and
making further substantiation unnecessary, and that his report
constituted fair comment on the public conduct of public officers,
obviously does not at all explain why a party given by Atty. Veto was
reported by him as one tendered by Equitable Bank. The only
conclusion that may rationally be drawn from these circumstances is
that Jurado, unable to advance any plausible reason for the
24
conspicuous divergence between what in fact transpired and what he
reported, again resorts to semantics and sophistry to attempt an
explanation of the unexplainable. Paraphrasing the Code of Ethics,
he failed to scrupulously report and interpret the news; on the
contrary, his failure or refusal to verify such essential facts as who
really hosted and tendered the luncheon and spent for it, and his
playing up of the Bank’s supposed role as such host have resulted in
an improper suppression of those facts and a gross distortion of the
truth about them.
. c.Re Other Items
Jurado disregarded the truth again, and in the process vilified the
Supreme Court, in the item in his column of February 3, 1993 already
adverted to,19 and more fully quoted as follows:
“When lawyers speak of the ‘Magnificent Seven’ one has to make sure
which group they are referring to. Makati’s ‘Magnificent Seven’ are a
bunch of Makati regional trial court judges who fix drug-related
cases. The ‘Magnificent Seven’ in the Supreme Court consists of a
group of justices who vote as one.”
About the last (italicized) statement there is, as in other accusations
of Jurado, not a shred of proof; and the volumes of the Supreme
Court Reports Annotated (SCRA) in which are reported the decisions
of the Supreme Court En Banc for the year 1992 (January to
December) and for January 1993, divulge not a single non-
unanimous decision or resolution where seven (7) justices voted “as
one,” nor any group of decisions or resolutions where the recorded
votes would even suggest the existence of 
_______________
19 SEE footnotes 4 and 12, supra.
332
332 SUPREME COURT REPORTS ANNOTATED  compromise.
In Re: Emil P. Jurado
such a cabal.
This is yet another accusation which Jurado is unable to substantiate
otherwise than, as also already pointed out, by invoking unnamed
and confidential sources which he claims he considers highly credible
and reliable and which would be imperilled by elaborating on the
information furnished by them. He would justify reliance on those
sources on grounds of necessity, custom and usage and claim the
protection of Republic Act No. 53, as amended by Republic Act No.
1477 from forced revelation of confidential news sources except when
demanded by the security of the state.20
Surely it cannot be postulated that the law protects a journalist who
deliberately prints lies or distorts the truth; or that a newsman may
escape liability who publishes derogatory or defamatory allegations
against a person or entity, but recognizes no obligation bona fide to
establish beforehand the factual basis of such imputations and
refuses to submit proof thereof when challenged to do so. It outrages
all notions of fair play and due process, and reduces to uselessness all
the injunctions of the Journalists’ Code of Ethics to allow a newsman,
with all the potential of his profession to influence popular belief and
shape public opinion, to make shameful and offensive charges
destructive of personal or institutional honor and repute, and when
called upon to justify the same, cavalierly beg off by claiming that to
do so would compromise his sources and demanding acceptance of
his word for the reliability of those sources.
Jurado’s other writings already detailed here are of the same sort.
While it might be tedious to recount what has already been stated
about the nature and content of those writings, it is necessary to do
so briefly in order not only to stress the gravity of the charges he
makes, but also to demonstrate that his response to the call for their
substantiation has been one of unvarying intransigence: an
advertence to confidential sources with whose reliability he professes
satisfaction and whom fuller disclosure would supposedly
25
There can be no doubt of the serious and degrading character—not
only to the Court of Appeals, but also to the judiciary in  that in one instance amounted to P300,000.
_______________
20 SEE p. 10, supra.
333
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
general—of his columns of November 9, 1992 and January 29, 1993
concerning an unnamed former justice of the Court of Appeals who
had allegedly turned “fixer” for five of the Court’s divisions and who,
for the right price, could guarantee that a party’s lawyer could write
his own decision for and in the name of theponente; and of his
column of March 24, 1993 to the effect that anywhere from P30,000
to P50,000 could buy a temporary restraining order from a regional
trial court in Manila.
The litany of falsehoods, and charges made without bona fide effort
at verification or substantiation, continues:
. (a)Jurado’s column of January 30, 1993 about eight (8)
Makati judges who were “handsomely paid” for decisions favoring
drug-traffickers and other big-time criminals was based on nothing
more than raw intelligence contained in a confidential police report.
It does not appear that any part of that report has been reliably
confirmed.
. (b)He has refused to offer any substantiation, either before
the Ad HocCommittee or in this proceeding, for his report of October
27, 1992 concerning an unnamed lady secretary of a Makati RTC
Judge who, besides earning at least P10,000 for making sure a case is
raffled off to a “sympathetic” judge, can also arrange the issuance of
attachments and injunctions for a fee of one (1%) percent over and
above usual premium for the attachment or injunction bond, a fee
. (c)His report (columns of January 16 and 29, 1993) that the
Judicial and Bar Council acted contrary to ethics and delicadeza in
nominating to the Court of Appeals a son and a nephew of its
members is completely untrue. The most cursory review of the
records of the Council will show that since its organization in 1987,
there has not been a single instance of any son or nephew of a
member of the Council being nominated to the Court of Appeals
333 during said member’s incumbency; and in this connection, he
mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as
the nephew of Justice (and then Member of the Judicial and Bar
Council) Lorenzo Relova when the truth, which he subsequently
learned and admitted, was that the person referred to was
Judge Joselito de la Rosa, the son-in-
334
334 SUPREME COURT REPORTS ANNOTATED 
In Re: Emil P. Jurado
. law, not the nephew, of Justice Relova. Had he bothered to
make any further verification, he would have learned that at all
sessions of the Council where the nomination of Judge Joselitode la
Rosa was considered, Justice Relova not only declined to take part in
the deliberations, but actually left the conference room; and he would
also have learned that JudgeRosalio de la Rosa had never been
nominated—indeed, to this date, he has not been nominated—to the
Court of Appeals.
. (d)He has recklessly slandered the Judicial and Bar Council
by charging that it has improperly made nominations to the Court of
Appeals on considerations other than of merit or fitness, through the
manipulations of the Council’s Secretary, Atty. Daniel Martinez; or
because the nominee happens to be a relative of a member of the
26
Council (e.g., JudgeJoselito de la Rosa, initially identified as Judge
Rosalio de la Rosa) or of the Supreme Court (he could name none so
situated); or has a powerful political sponsor (referring to RTC Judge
Conrado Vasquez, Jr., son and namesake of the Ombudsman).
Acceptance of the truth of these statements is precluded, not only by
the familiar and established presumption of regularity in the
performance of official functions, but also, and even more
conclusively by the records of the Judicial and Bar Council itself,
which attest to the qualifications of Atty. Daniel Martinez, Clerk of
Court of the Supreme Court, Judge Joselito de la Rosa, and Judge
Conrado Vasquez, Jr. for membership in the Appellate Tribunal;
. (e)Equally false is Jurado’s report (column of January 25,
1993) that nomination to the Court of Appeals of some worthy
individuals like Quezon City RTC Judge Maximiano Asuncion, and
Atty. Raul Victorino (who was closely identified with former Senate
President Salonga) had been blocked because they had “incurred the
ire of the powers that be,” the truth, which could very easily have
been verified, being that a pending administrative case against Judge
Asuncion had stood in the way of his nomination, and since Mr.
Victorino had been sponsored or recommended by then Senate
President Salonga himself, the fact that he was not nominated can
hardly be attributed to the hostility or
335
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
. opposition of persons in positions of power or influence.
. (f)Jurado was similarly unfair, untruthful and unfoundedly
judgmental in his reporting about Executive Judge Rosalio de la Rosa
of the Manila Regional Trial Court as:
. (1)having been nominated to the Court of Appeals by the
Judicial and Bar Council chiefly, if not only, by reason of being the
nephew of Justice Relova and the cousin of Chief Justice Narvasa,
the truth, as already pointed out, being that Judge Rosalio de la Rosa
had never been thus nominated to the Court of Appeals, the nominee
having been Judge Joselito de la Rosa, the son-in-law (not nephew)
of Justice Relova; and
. (2)having discarded the rule that cases seeking provisional
remedies should be raffled off to the judges (column of January 28,
1993) and adopted a system of farming out applications for
temporary restraining orders, etc., among all the branches of the
court; here again, Jurado is shown to have written without thinking,
and made statements without verifying the accuracy of his
information or seeking the views of the subject of his pejorative
statements; the merest inquiry would have revealed to him that while
Circular No. 7 dated September 23, 1974 requires that no case may be
assigned in multi-sala courts without raffle (for purposes of
disposition on the merits), Administrative Order No. 6, dated June
30, 1975 (Sec. 15, Par. IV),21 empowers Executive Judges to act on all
applications for provisional remedies (attachments, injunctions, or
temporary restraining orders, receiverships, etc.), or on interlocutory
matters before raffle, in order to “balance the workload among courts
and judges, (Sec. 1, par. 2, id.), and exercise such other powers
_______________
335
21 Said Sec. 15, par IV, supersedes the provision in Circular No. 7
that the Executive Judge “shall have no authority to act on any
incidental or interlocutory matter in any case not yet assigned to any
branch by raffle.”
336
336 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
27
. and prerogatives as may in his judgment be necessary or
incidental to the performance of his functions as a Court
Administrator” (Sec. 7, par. 1, id.)—these provisions being broad
enough, not only to authorize unilateral action by the Executive
Judge himself on provisional remedies and interlocutory matters
even prior to raffle of the main case, but also to delegate the
authority to act thereon to other judges.  337
Jurado does not explain why: (1) he made no effort to verify the state
of the rules on the matter; (2) he precipitately assumed that the views
of Judge Teresita Dy-Liaco Flores, whose complaint on the subject he
claims he merely summarized, were necessarily correct and the acts
of Judge de la Rosa necessarily wrong or improper; and (3) he did
not try to get Judge de la Rosa’s side at all.
Common to all these utterances of Jurado is the failure to undertake
even the most cursory verification of their objective truth; the
abdication of the journalist’s duty to report and interpret the news
with scrupulous fairness; and the breach of the law’s injunction that
a person act with justice, give everyone his due and observe honesty
and good faith both in the exercise of his rights and in the
performance of his duties.
. 7.Jurado’s Proffered Excuses and Defenses
The principle of press freedom is invoked by Jurado in justification
of these published writings. That invocation is obviously unavailing
in light of the basic postulates and the established axioms or norms
for the proper exercise of press freedom earlier set forth in this
opinion.22
Jurado next puts in issue this Court’s power to cite him for contempt.
The issue is quickly disposed of by adverting to the familiar principle
reiterated inter aliain Zaldivar v. Gonzalez:23
_______________
22 Subhead “1.Basic Postulates,” at pages 1 and 2; and sub-head
“5.Norms for Proper Exercise of Press Freedom,” at pp. 12 to
15, supra.
23 166 SCRA 316 (1988).
VOL. 243, APRIL 6, 1995 337 
In Re: Emil P. Jurado
“** (T)he Supreme Court has inherent power to punish for contempt,
to control in the furtherance of justice the conduct of ministerial
officers of the Court including lawyers and all other persons
connected in any manner with a case before the Court (In re Kelly, 35
Phil. 944[1916];In re Severino Lozano and Anastacio Quevedo, 54
Phil. 801 [1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and In
re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for
contempt is ‘necessary for its own protection against improper
interference with the due administration of justice,’ ‘(i)t is not
dependent upon the complaint of any of the parties litigant’” (Halili
v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v.
Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA
1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA
1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil.
630 [1946]).”
Contempt is punishable, even if committed without relation to a
pending case. Philippine jurisprudence parallels a respectable array
of English decisions holding contumacious scurrilous attacks against
the courts calculated to bring them into disrepute, even when made
after the trial stage or after the end of the proceedings. The original
doctrine laid down in People vs. Alarcon24—that there is no
contempt if there is no pending case—has been abandoned in
subsequent rulings of this Court which have since adopted the Moran
dissent therein,25viz.:
28
“Contempt, by reason of publications relating to court and to court
proceedings, are of two kinds. A publication which tends to impede,
obstruct, embarrass or influence the courts in administering justice
in a pending suit or proceeding, constitutes criminal contempt which
is summarily punishable by courts. This is the rule announced in the
cases relied upon by the majority. A publication which tends to
degrade the courts and to destroy public confidence in them or that
which tends to bring them in any way into disrepute, constitutes
likewise criminal contempt, and is equally punishable by courts. In
the language of the majority, what is sought, in the first kind of
contempt, to be shielded against the influence of newspaper
comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of
contempt, the punitive hand of  Telephone Company which:
_______________
24 69 Phil. 265 (1939).
25 Id., at p. 273, 274-275; SEE In re Brillantes, 42 O.G. No. 1, p. 59,
and In re Almacen, 31 SCRA 595-596.
338
338 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
justice is extended to vindicate the courts from any act or conduct
calculated to bring them into disfavor or to destroy public confidence
in them. In the first, there is no contempt where there is no action
pending, as there is no decision which might in any way be
influenced by the newspaper publication. In the second, the
contempt exists, with or without a pending case, as what is sought to
be protected is the court itself and its dignity. (12 Am. Jur. pp. 416-
417.) Courts would lose their utility if public confidence in them is
destroyed.”
The foregoing disposes of Jurado’s other contention that the present
administrative matter is not a citation for direct contempt, there
being no pending case or proceeding out of which a charge of direct
contempt against him may arise; this, even without regard to the fact
that the statements made by him about sojourn in Hongkong of six
Justices of the Supreme Court were clearly in relation to a case
involving two (2) public utility companies, then pending in this
Court.26
His theory that there is no formal charge against him is specious. His
published statements about that alleged trip are branded as false in
no uncertain terms by the sworn statement and letter of Vice-
President Vicente R. Samson of the Philippine Long Distance
. (a)“emphatically and categorically” deny that PLDT had
made any arrangements with any travel agency, or with the two
travel agencies it patronized or retained, or paid anything, on
account of such alleged trip;
. (b)positively affirm (i) that PLDT was “not even aware that
any of the justices or their families ** (had) made the trip referred to
in the Jurado column,” and (ii) that neither Atty. Emil P. Jurado nor
anyone in his behalf has ever spoken to ** (said Mr. Samson) or any
other responsible officer of PLDT about the matter **”; and
. (c)beseech the Court to “take such action (on the matter) as
may be appropriate.”
_______________
26 The case is, as indicated early in this opinion (Sub-Head No. 3,
pp. 5-6), G.R. No. 94374 (Philippine Long Distance Telephone
Company v. National Telecommunications Commission and
Eastern Telephone Philippines, Inc. [ETPI]), decided by the
Court En Banc on August 27, 1992; and the signed Resolution
disposing of the respondents’ motion for the reconsideration of said
decision of August 27, 1992, was promulgated on February 21, 1995.
339
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In Re: Emil P. Jurado
As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson’s letter and affidavit docketed as
an official Court proceeding to determine the truth of Jurado’s
allegations about it; and (b) directed also that Jurado be furnished
copies of Atty. William Veto’s affidavit on the luncheon party hosted
by him (which Jurado reported as one given by Equitable Bank) and
that Jurado file comment on said affidavits as well as allegations in
specified columns of his. Jurado was also furnished copies of the
affidavits later submitted by the two travel agencies mentioned in
Samson’s statement, and was required to comment thereon.
It was thus made clear to him that he was being called to account for
his published statements about the matters referred to, and that
action would be taken thereon against him as “may be appropriate.”
That that was in fact how he understood it is evident from his
submitted defenses, denying or negativing liability for contempt,
direct or indirect. Indeed, as a journalist of no little experience and a
lawyer to boot, he cannot credibly claim an inability to understand
the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative
supervision over him as a member of the press or over his work as a
journalist, and asks why he is being singled out, and, by being
required to submit to a separate administrative proceeding, treated
differently than his other colleagues in media who were only asked to
explain their reports and comments about wrongdoing in the
judiciary to the Ad HocCommittee. The answer is that upon all that
has so far been said, the Court may hold anyone to answer for
utterances offensive to its dignity, honor or reputation, which tend to
put it in disrepute, obstruct the administration of justice, or interfere
with the disposition of its business or the performance of its
functions in an orderly manner. Jurado has not been singled out.
What has happened is that there have been brought before the Court,
formally and in due course, sworn statements branding his reports as
lies and thus imposing upon him the alternatives of substantiating
339 those reports or assuming responsibility for their publication.
Jurado would have the Court clarify in what capacity—whether as a
journalist, or as a member of the bar—has been cited in
theseproceedings. Thereby he resurrects the issue he once
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340 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
raised in a similar earlier proceeding: that he is being called to
account as a lawyer for his statements as a journalist.27 This is not
the case at all. Upon the doctrines and principles already inquired
into and cited, he is open to sanctions as journalist who has misused
and abused press freedom to put the judiciary in clear and present
danger of disrepute and of public odium and opprobrium, to the
detriment and prejudice of the administration of justice. That he is at
the same time a member of the bar has nothing to do with the setting
in of those sanctions, although it may aggravate liability. At any rate,
what was said about the matter in that earlier case is equally cogent
here:
“Respondent expresses perplexity at being called to account for the
publications in question in his capacity as a member of the bar, not
as a journalist. The distinction is meaningless, since as the matter
stands, he has failed to justify his actuations in either capacity, and
there is no question of the Court’s authority to call him to task either
as a newsman or as a lawyer. What respondent proposes is that in
considering his actions, the Court judge them only as those of a
member of the press and disregard the fact that he is also a lawyer.
But his actions cannot be put into such neat compartments. In the
natural order of things, a person’s acts are determined by, and
reflect, the sum total of his knowledge, training and experience. In
the case of respondent in particular, the Court will take judicial
notice of the frequent appearance in his regular columns of
comments and observations utilizing legal language and argument,
30
bearing witness to the fact that in pursuing his craft as a journalist he
calls upon his knowledge as a lawyer to help inform and influence his
readers and enhance his credibility. Even absent this circumstance,
respondent cannot honestly assert that in exercising his profession as
a journalist he does not somehow, consciously or unconsciously,
draw upon his legal knowledge and training. It is thus not realistic,
nor perhaps even possible, to come to any fair, informed and
intelligent judgment of respondent’s actuations by divorcing from
consideration the fact that he is a lawyer as well as a newspaperman,
even supposing, which is not the case—that he may thereby be found
without accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court
to lend ear to his plea that his actions be judged solely as those of a
newspaperman urburdened by the duties and responsibilities pecu-
_______________
27 Adm. Matter No. 90-5-2373, In re:Atty. Emiliano P. Jurado, Jr.,
a.k.a. Emil Jurado, Extended Resolution, July 12, 1990.
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In Re: Emil P. Jurado
liar to the law profession of which he is also a member.”
. 8.The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and
Melo that would invoke freedom of the press to purge Jurado’s
conduct of any taint of contempt must now be briefly addressed.
. a.Apparent Misapprehension of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only
about the antecedents directly leading to the proceedings at bar but
also the basic issues involved.
The dissents appear to be of the view, for instance, that it was chiefly
Jurado’s failure to appear before the Ad Hoc Committee in response
to two (2) letters of invitation issued to him, that compelled the
Court to order the matter to be docketed on February 16, 1993 and to
require respondent Jurado to file his Comment. This is not the case
at all. As is made clear in Sub-Heads 3 and 4 of this opinion, supra,
the direct cause of these proceedings wasnotJurado’s refusal to
appear and give evidence before the Ad Hoc Committee. The direct
cause was the letters of PLDT and Atty. William Veto, supported by
affidavits, denouncing certain of his stories as false,28 with the
former praying that the Court take such action as may be
appropriate. And it was precisely “the matter dealt with in the letter
and affidavit of the PLDT” that this Court ordered to “be duly
DOCKETED, and hereafter considered and acted upon as an official
Court proceeding,” this, by Resolution dated February 16, 1993; the
Court also requiring, in the same Resolution, “that the Clerk of Court
SEND COPIES of the PLDT letter and affidavit, and of the affidavit of
Atty. William Veto to Atty. Emil Jurado **,” and that Jurado 
_______________
341
28 Specially, that concerning an alleged Hongkong vacation of six (6)
unnamed Justices of the Supreme Court and their families which had
been paid for by a public utility firm, and arranged by a travel agency
patronized by the latter; and that relative to an alleged party of a
bank for certain unnamed Justices and judges (SEE Sub-Head 3, a
and b).
342
342 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
31
should comment thereon “as well as (on) the allegations made by
him in his columns, herein specified”—because of explicit claims, and
indications of the falsity or inaccuracy thereof.
There thus also appears to be some misapprehension of the basic
issues, at least two of which are framed in this wise: (1) the right of
newsmen to refuse subpoenas, summons, or ‘invitations’ to appear in
administrative investigations,” and (2) their right “not to reveal
confidential sources of information under R.A. No. 53, as
amended”—which are not really involved here—in respect of which it
is theorized that the majority opinion will have an inhibiting effect on
newsmen’s confidential sources of information, and thereby abridges
the freedom of the press.
. (1)No Summons or Subpoena  plea that under R.A. No. 53, he may not be compelled to disclose the
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado
by the Ad HocCommittee; nor was the issuance of any such or similar
processes, or any punitive measures for disobedience thereto,
intended or even contemplated. Like most witnesses who gave
evidence before the Committee, Jurado was merely invited to appear
before it to give information in aid of its assigned task of ascertaining
the truth concerning persistent rumors and reports about corruption
in the judiciary. When he declined to accept the invitations, the Ad
Hoc Committee took no action save to inform the Court thereof; and
the Court itself also took no action. There is thus absolutely no
occasion to ascribe to that investigation and the invitation to appear
thereat a “chilling effect” on the by and large “hard-boiled” and self-
assured members of the media fraternity. If at all, the patience and
forbearance of the Court, despite the indifference of some of its
invitees and projected witnesses, appear to have generated an
attitude on their part bordering on defiant insolence.
. (2)No Blanket Excuse Under RA 53  testimony before the Ad Hoc Committee. He is not being compelled
From Responding to Subpoena
Even assuming that the facts were as represented in the separate
opinion, i.e., that subpoenae had in fact been issued to and served on
Jurado, his unexplained failure to obey the same 
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VOL. 243, APRIL 6, 1995 343
In Re: Emil P. Jurado
wouldprima facie constitute constructive contempt under Section 3,
Rule 71 of the Rules of Court. It should be obvious that a journalist
may not refuse to appear at all as required by a subpoena on the bare
source of his information. For until he knows what questions will be
put to him as witness—for which his presence has been compelled—
the relevance of R.A. No. 53 cannot be ascertained. His duty is clear.
He must obey the subpoena. He must appear at the appointed place,
date and hour, ready to answer questions, and he may invoke the
protection of the statute only at the appropriate time.
. b.The Actual Issue
The issue therefore had nothing to do with any failure of Jurado’s to
obey a subpoena,none ever having been issued to him, and the Ad
Hoc Committee having foreborne to take any action at all as regards
his failure to accept its invitations. The issue, as set out in the
opening sentence of this opinion, essentially concerns “(l)iability for
published statements demonstrably false or misleading, and
derogatory of the courts and individual judges.”
Jurado is not being called to account for declining to identify the
sources of his news stories, or for refusing to appear and give
to guarantee the truth of what he publishes, but to exercise honest
and reasonable efforts to determine the truth of defamatory
statements before publishing them. He is being meted the
punishment appropriate to the publication of stories shown to be
false and defamatory of the judiciary—stories that he made no effort
32
whatsoever to verify and which, after being denounced as lies, he has
refused, or is unable, to substantiate.
. c.RA 53 Confers No Immunity from Liability  A journalist cannot say, e.g.: a person of whose veracity I have no
for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition
that a newsman has a right to keep his sources confidential; that he
cannot be compelled by the courts to disclose them, as provided by
R.A. 53, unless the security of the State demands
344
344 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
such revelation. But it does hold that he cannot invoke such right as a
shield against liability for printing stories that are untrue and
derogatory of the courts, or others. The ruling, in other words, is that
when called to account for publications denounced as inaccurate and
misleading, the journalist has the option (a) to demonstrate their
truthfulness or accuracy even if in the process he disclose his sources,
or (b) to refuse, on the ground that to do so would require such
disclosure. In the latter event, however, he must be ready to accept
the consequences of publishing untruthful or misleading stories the
truth and accuracy of which he is unwilling or made no bona
fide effort to prove; for R.A. 53, as amended, is quite unequivocal
that the right of refusal to disclose sources is “without prejudice to **
liability under civil and criminal laws.”
RA No. 53 thus confers no immunity from prosecution for libel or for
other sanction under law. It does not declare that the publication of
any news report or information which was “related in confidence” to
the journalist is not actionable; such circumstance (of
confidentiality) does not purge the publication of its character as
defamatory, if indeed it be such, and actionable on that ground. All it
does is give the journalist the right to refuse (or not to be compelled)
to reveal the source of any news report published by him which was
revealed to him in confidence.
doubt told me in confidence that Justices X and Y received a bribe of
P1M each for their votes in such and such a case, or that a certain
Judge maintains a mistress, and when called to account for such
statements, absolve himself by claiming immunity under R.A. 53, or
invoking press freedom.
. d.A Word about “Group Libel”
There is hardly need to belabor the familiar doctrine about group
libel and how it has become the familiar resort of unscrupulous
newsmen who can malign any number of anonymous members of a
common profession, calling or persuasion, thereby putting an entire
institution—like the judiciary in this case—in peril of public
contumely and mistrust without serious risk of being sued for
defamation. The preceding discussions have revealed Jurado’s
predilection for, if not his normal practice of,
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VOL. 243, APRIL 6, 1995 345
In Re: Emil P. Jurado
refusing to specifically identify or render identifiable the persons he
maligns. Thus, he speaks of the “Magnificent Seven,” by merely
referring to undisclosed regional trial court judges in Makati; the
“Magnificent Seven” in the Supreme Court, as some undesignated
justices who supposedly vote as one; the “Dirty Dozen,” as
unidentified trial judges in Makati and three other cities. He adverts
to an anonymous group of justices and judges for whom a bank
allegedly hosted a party; and six unnamed justices of this Court who
reportedly spent a prepaid vacation in Hong Kong with their families.
This resort to generalities and ambiguities is an old and familiar but
reprehensible expedient of newsmongers to avoid criminal sanctions
since the American doctrine of group libel is of restricted application
33
in this jurisdiction. For want of a definitely identified or satisfactorily
identifiable victim, there is generally no actionable libel, but such a
craven publication inevitably succeeds in putting all the members of
the judiciary thus all together referred to under a cloud of suspicion.
A veteran journalist and lawyer of long standing that he is, Jurado
could not have been unaware of the foregoing realities and
consequences.
. e. Substantiation of News Report Not Inconsistent with RA
53
It is argued that compelling a journalist to substantiate the news
report or information confidentially revealed to him would
necessarily negate or dilute his right to refuse disclosure of its source.
The argument will not stand scrutiny.
A journalist’s “source” either exists or is fictitious. If the latter,
plainly, the journalist is entitled to no protection or immunity
whatsoever.
If the “source” actually exists, the information furnished is either
capable of independent substantiation, or it is not. If the first, the
journalist’s duty is clear: ascertain, if not obtain, the evidence by
which the information may be verified beforepublishing the same;
and if thereafter called to account therefor, present such evidence
and in the process afford the party adversely affected thereby
opportunity to dispute the information or show it to be false.  journalist’s obligation to protect his sources of information
346
346 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
If the information is not verifiable, and it is derogatory of any third
party, then it ought not to be published for obvious reasons. It would
be unfair to the subject of the report, who would be without means of
refuting the imputations against him. And it would afford an
unscrupulous journalist a ready device by which to smear third
parties without the obligation to substantiate his imputations by
merely claiming that the information had been given to him “in
confidence.”
It is suggested that there is another face to the privileged character of
a journalist’s source of information than merely the protection of the
journalist, and that it is intended to protect also the source itself.
What clearly is implied is that journalist may not reveal his source
without the latter’s clearance or consent. This totally overlooks the
fact that the object of a derogatory publication has at least an equal
right to know the source thereof and, if indeed traduced, to the
opportunity of obtaining just satisfaction from the traducer.
. 9.Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening,
hardly address the mundane, but immediate and very pertinent,
question of whether a journalist may put in print unverified
information derogatory of the courts and judges and yet remain
immune from liability for contempt for refusing, when called upon,
to demonstrate their truth on the ground of press freedom or by
simply claiming that he need not do so since (or if) it would compel
him to disclose the identity of his source or sources.
The question, too, is whether or not we are prepared to say that a
transcends, and is greater than, his duty to the truth; and that,
accordingly, he has no obligation whatsoever to verify, or
exercisebona fide efforts to verify, the information he is given or
obtain the side of the party adversely affected before he publishes the
same.
True, the pre-eminent role of a free press in keeping freedom alive
and democracy in full bloom cannot be overemphasized. But it is
debatable if that role is well and truly filled by a press let loose to
print what it will, without reasonable restraints designed 
347
34

VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
to assure the truth and accuracy of what is published. The value of
information to a free society is in direct proportion to the truth it
contains. That value reduces to little or nothing when it is no longer
possible for the public to distinguish between truth and falsehood in
news reports, and the courts are denied the mechanisms by which to
make reasonably sure that only the truth reaches print.
. a.No Constitutional Protection for Deliberately  Although honest utterances, even if inaccurate, may further the
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other
person are not shielded from sanction by the cardinal right to free
speech enshrined in the Constitution. Even the most liberal view of
free speech has never countenanced the publication of falsehoods,
specially the persistent and unmitigated dissemination of patent lies.
The U.S. Supreme Court,29 while asserting that “(u)nder the First
Amendment there is no such thing as a false idea,” and that
“(h)owever pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas” (citing a passage from the first Inaugural
Address of Thomas Jefferson), nonetheless made the firm
pronouncement that “there is no constitutional value in false
statements of fact,” and “the erroneous statement of fact is not
worthy of constitutional protection (although) ** nevertheless
inevitable in free debate.” “Neither the intentional lie nor the careless
error,” it said, “materially advances society’s interest in ‘unhibited,
robust, and wide-open’ debate on public issues. New York Times Co.
v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They
belong to that category of utterances which ‘are no essential part of
any exposition of ideas, and are of such slight social value as a step to
the truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.’ Chaplinsky
v. New Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766
(1942).”  of truth and with no other probable effect than the harassment of the
_______________
347
29 In Gertz v. Robert Welch., 418 U.S. 323, 340.
348
348 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
“The use of calculated falsehood,” it was observed in another
case,30 “would put a different cast on the constitutional question.
fruitful exercise of the right of free speech, it does not follow that the
lie, knowingly and deliberately published about a public official,
should enjoy a like immunity. ** ** (T)he knowingly false statement
and the false statement made with reckless disregard of the truth, do
not enjoy constitutional protection.”
Similarly, in a 1969 case concerning a patently false accusation made
against a public employee avowedly in fulfillment of a “legal, moral,
or social duty,”31 this Court, through the late Chief Justice Roberto
Concepcion, ruled that the guaranty of free speech cannot be
considered as according protection to the disclosure of lies, gossip or
rumor, viz.:
“ ** Defendant’s civil duty was to help the Government clean house
and weed out dishonest, unfit or disloyal officers and employees
thereof, where there is reasonable ground to believe that they fall
under this category. He had no legal right, much less duty, to gossip,
or foster the circulation of rumors, or jump at conclusions and more
so if they are gratuitous or groundless. Otherwise, the freedom of
speech, which is guaranteed with a view to strengthening our
democratic institutions and promoting the general welfare, would be
a convenient excuse to engage in the vituperation of individuals, for
the attainment of private, selfish and vindictive ends, thereby
hampering the operation of the Government with administrative
investigations of charges preferred without any color or appearance
35
officer or employee concerned, to the detriment of public service and
public order.”
. b.No “Chilling Effect”
The fear expressed, and earlier adverted to, that the principles here
affirmed would have a “chilling effect” on media professionals, seems
largely unfounded and should be inconsequential to the greater
number of journalists in this country who, by and large, out of
considerations of truth, accuracy, and fair play, have commendably
refrained from ventilating what would otherwise  “It may be said that respect to courts cannot be compelled and that
_______________
30 Garrison v. Louisiana, 379 U.S. 64, 75.
31 Orfanel v. People, 30 SCRA 819, 828-829.
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In Re: Emil P. Jurado
be “sensational” or “high-visibility” stories. In merely seeking to
infuse and perpetuate the same attitude and sense of responsibility in
all journalists, i.e., that there is a need to check out the truth and
correctness of information before publishing it, or that, on the other
hand, recklessness and crass sensationalism should be eschewed, this
decision, surely, cannot have such “chilling effect,” and no
apprehension that it would deter the determination of truth or the
public exposure of wrong can reasonably be entertained.
The people’s right to discover the truth is not advanced by unbridled
license in reportage that would find favor only with extremist
liberalism. If it has done nothing else, this case has made clear the
compelling necessity of the guidelines and parameters elsewhere
herein laid down. They are eminently reasonable, and no responsible
journalist should have cause to complain of difficulty in their
observance.
. 10.Afterword
It seems fitting to close this opinion with the words of Chief Justice
Moran, whose pronouncements have already been earlier
quoted,32 and are as germane today as when they were first written
more than fifty (50) years ago.33
public confidence should be a tribute to judicial worth, virtue and
intelligence. But compelling respect to courts is one thing and
denying the courts the power to vindicate themselves when outraged
is another. I know of no principle of law that authorizes with
impunity a discontended citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and
judges. If he believes that a judge is corrupt and that justice has
somewhere been perverted, law and order require that he follow the
processes provided by the Constitution and the statutes by instituting
the corresponding proceedings for impeachment or otherwise. **.
349
“*****
“It might be suggested that judges who are unjustly attacked have a
remedy in an action for libel. This suggestion has, however, no
_______________
32 SEE footnote 24, supra.
33 69 Phil. 265, 277, 279.
350
350 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
36
rational basis in principle. In the first place, the outrage is not
directed to the judge as a private individual but to the judge as such
or to the court as an organ of the administration of justice. In the
second place, public interests will gravely suffer where the judge, as
such, will, from time to time, be pulled down and disrobed of his
judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same
reasons of public policy which exempt a judge from civil liability in
the exercise of his judicial functions, most fundamental of which is
the policy to confine his time exclusively to the discharge of his
public duties, applies here with equal, if not superior, force
(Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403;
Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134
N.E. 194). **.”
Jurado’s actuations, in the context in which they were done,
demonstrate gross irresponsibility, and indifference to factual
accuracy and the injury that he might cause to the name and
reputation of those of whom he wrote. They constitute contempt of
court, directly tending as they do to degrade or abase the
administration of justice and the judges engaged in that function. By
doing them, he has placed himself beyond the circle of reputable,
decent and responsible journalists who live by their Code or the
“Golden Rule” and who strive at all times to maintain the prestige
and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct
detailed here, Jurado has maintained a defiant stance. “This is a fight
I will not run from,” he wrote in his column of March 21, 1993; and
again, “I will not run away from a good fight,” in his column of March
23, 1993. Such an attitude discourages leniency, and leaves no choice
save the application of sanctions appropriate to the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado
guilty of contempt of court and in accordance with Section 6, Rule 71
of the Rules of Court, hereby sentences him to pay a fine of one
thousand pesos (P1,000.00).
IT IS SO ORDERED.
     Feliciano, Bidin, Regalado, Davide,
Jr., Romero, Bellosillo, Quiason, Mendozaand Francisco, JJ.,
concur.
     Padilla, J., I join Mr. Justice Puno in his dissenting opinion.
351
VOL. 243, APRIL 6, 1995 351
In Re: Emil P. Jurado
     Melo, J., Please see dissenting opinion.
     Puno, J., Please see dissenting opinion.
     Vitug, J., No part; respondent was a former partner in a law firm.
     Kapunan, J., I take no part. Respondent is related to me by
affinity.
DISSENTING OPINION
MELO,J.:
In making a choice between the preservation of liberties and
freedom, on one hand, and the attainment of a better—ordered
society, on the other, men have not stopped debating. The balance,
the point of the weighing scale, has moved hither and thither
depending on the needs of the times and on the kind of government
involved. But in democratic governments, there must at all times be
due regard for the preservation of constitutional rights even to the
extent, at times, of seemingly sacrificing, as in the case at hand,
accurate and truthful media comment.
To be sure, fair, accurate, truthful reporting by the press is the
hallmark and badge of a healthy and self-assured society. But such
37
ideal must not be purchased or achieved at the cost of press freedom
itself, but rather by caring for and nurturing, cultivating, and
promoting the growth of said freedom, impressing upon its
practitioners due regard for the truth and the entitlement of the
public they serve to accurate reporting instead of the publication or
airing of private biases and jaundiced views.
It is thus even as I am personally disturbed by fallacious, specious,
and at times downright false and deceitful reporting and comments,
meant only to promote private and selfish interests, I must extend
my concurrence to the well-written opinion of Justice Puno. For, as
was said of old, when one rows through a sea of conflict between
restraint and freedom, one should hold both oars steadily, but always
with the oar of freedom in the stronger hand, lest an errant course be
laid.
352
352 SUPREME COURT REPORTS ANNOTATED  seekto ascertain the truth respecting said reports and statements,
In Re: Emil P. Jurado
DISSENTING OPINION
PUNO,J.:
The case at bench resolves several issues of critical importance to
freedom of speech and of the press, thus: (1) the right of newsmen to
refuse subpoenas, summons, or “invitations” to appear in
administrative investigations; (2) the right of newsmen not to reveal
confidential sources of information under R.A. No. 53, as amended;
and (3) the test to be followed before a false or slanted report by a
journalist can be adjudged as constitutive of contempt of court. It is
my humble submission that the majority opinion, even while heavily
laden with wisdom, has too much of an inhibiting effect on our
newsmen’s pen as to abridge their freedom of speech and of the
press. I, therefore, dissent.
The facts are amply stated in the majority opinion. In 1992-93,
unsavory news and commentaries about malpractices in the
judiciary, some of them outrightly vicious, appeared in the print and
broadcast media. In reaction, Chief Justice Andres R. Narvasa issued
Administrative Order No. 11-93, dated January 25, 1993, “Creating
an Ad Hoc Committee to Investigate Reports of Corruption in the
Judiciary.” Its text reads:
“WHEREAS, the Court’s attention has been drawn to the many and
persistent rumors and unverified reports respecting corruption in the
judiciary, said rumors and reports not only having been mentioned
by media and in anonymous communications, but having also been
adverted to by certain government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an ad hoc committee
is hereby constituted composed of Chief Justice Andres R. Narvasa,
as Chairman, and former Justices of the Court, Hon. Lorenzo Relova
and Hon. Ameurfina A. Melencio-Herrera, as Members, which shall
and to this end, forthwith interview at closed-door sessions or
otherwise, such persons as may appear to it to have some knowledge
of the matterand who may be appealed to to share knowledge with
the Court, and otherwise gather such evidence as may be available.
The Committee is hereby authorized to use such facilities and
personnel of the Court as may be necessary or convenient in the
fulfillment of its assigned mission, and shall submit its report to the
Court within thirty (30)days.” (Italics supplied)
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VOL. 243, APRIL 6, 1995 353
In Re: Emil P. Jurado
The membership of the Committee was immediately
constituted.1 From February 2, 1993 to April 16, 1993, the Committee
held twenty-four (24) closed-door sessions and interviewed seventy-
one (71) witnesses who appeared to have some knowledge of the
subject of inquiry.2
38
Among the persons invited by the Committee to appear was
respondent Jurado. His first invitation was to appear on February 4,
1993 “to give the Committee information that will assist it in its
task,i.e., to definitely and accurately determine the facts as regards
the published rumors and reports of corruption in the judiciary.”
Respondent Jurado failed to honor the invitation. On February 5,
1993, the Committee reiterated its invitation, couched in the
following language:
“x x x      x x x      x x x
“It is regretted that you failed to respond to the invitation of the Ad
Hoc Committee to appear at its session of February 4, 1993. All
indications are that you are the person with the most knowledge
about corruption in the judiciary and hence, appear to be best
positioned to assist the Ad Hoc Committee in its function of
obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid
itself of the incompetents and the misfits in its ranks, and we believe
you will want to help the Court to do precisely that, by furnishing the
Committee with competent evidence, testimonial or otherwise.
Clearly, the purging process cannot be accomplished without proof,
testimonial or otherwise, as you must no doubt realize, being yourself
a lawyer.
We would like you to know that the Ad Hoc Committee created by
Administrative Order No. 11-93 is simply a fact-finding body. Its
function is evidence-gathering. Although possessed of the authority
to maintain and enforce order in its proceedings, and to compel
obedience to its processes, it is not an adjudicative body in the sense
that it will pronounce persons guilty or innocent, or impose
sanctions, on the basis of such proofs as may be presented to it. That
function is reserved to the Supreme Court itself, in which it is lodged
by the Constitution and the  the City World Travel Mart Corporation and of Mrs. Marissa de la
_______________
1 Named alternate members were Associate Justices Hilario G.
Davide, Jr., Josue N. Bellosillo, and Irene R. Cortes (retired).
2 Report and Recommendations of the Ad Hoc Committee created
under Adm. Order No. 11-93, dated May 7, 1993, pp. 1-2.
354
354 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
laws. Thus, at the conclusion of its evidence-gathering mission,
the Ad Hoc Committee will submit its report and recommendations
to the Court which will then take such action as it deems appropriate.
TheAd Hoc Committee has scheduled hearings on the 11th and 12th
of February, 1993. Mr. Justice Hilario G. Davide, Jr., will preside as
Chairman at these hearings since I will be unable to do so in view of
earlier commitments. We reiterate our invitation that you come
before the Committee, and you may opt to appear either on the 11th
or 12th of February, 1993, at 2 o’clock in the afternoon.” (Italics
supplied)
Again, respondent Jurado did not appear in the scheduled
investigations. The Court ordered the matter to be docketed on
February 16, 1993 and respondent was asked to file his Comment on
the PLDT letter and affidavit of Mr. Vicente Samson and the affidavit
of Atty. William Veto, the contents of which are related in the
majority opinion.
Respondent Jurado submitted his Comment on March 1, 1993. By
then, the Court has also received the affidavits of Mr. Ermin Garcia of
Paz of Philway Travel Corporation traversing the column of February
8, 1993 of the respondent. On Orders of the Court, the respondent
then submitted a Supplemental Comment with Request for
39
Clarification on March 15, 1993. Among other defenses, respondent
invoked R.A. No. 53,3 as amended by R.A. No. 1477, which reads:
“AN ACT AMENDING SECTION ONE OF REPUBLIC ACT
NUMBERED FIFTY-THREE, ENTITLED ‘AN ACT TO EXEMPT
THE PUBLISHER, EDITOR, COLUMNIST OR REPORTER OF ANY
PUBLICATION FROM REVEALING THE SOURCE OF PUBLISHED
NEWS OR INFORMATION OBTAINED IN CONFI-DENCE’
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
SECTION1. Section one of Republic Act Numbered Fifty-three is
amended to read as follows:
SECTION1. Without prejudice to his liability under the civil and
criminal laws, the publisher, editor, columnist or duly accredited
_______________
3 Enacted on October 5, 1946.
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VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
reporter of any newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source of any news-
report or information appearing in said publication which was
related in confidence to such publisher, editor or reporter unless the
Court or a House or committee of Congress finds that such revelation
is demanded by the security of the State.
SECTION2. This Act shall take effect upon its approval.
Approved, June 15, 1956.” (Italics supplied)
Upon these facts, the majority would hold respondent guilty of
contempt of court.
In adjudging respondent in contempt of court, the majority
attempted to establish an equilibrium between the importance of a
free press and the need to maintain the integrity and orderly
functioning of the administration of justice, the civil law duty to “act
with justice, give everyone his due, and observe honesty and good
faith,” and the right to private honor and reputation. The majority
tilted the balance against freedom of the press and respondent
Jurado after finding that some of his columns were either false or
slanted as he made no effort to verify them before their publication.
How to strike a balance that will accommodate equally compelling
yet competing State interests has divided men of stratospheric
intellect. Until the last decibel of time, and while man continues to be
bereft of infallibility, the best of minds will continue with their search
for the elusive variables that will correctly tilt the balance between
press freedom and other freedoms. Thus, with high respect to my
learned colleagues in the majority, I beg to differ with their
conclusion on where to fix the elusive balance in the case at bench.
A brief revisit of the history of the struggle to protect freedom of the
press ought to be enlightening. It will remind us that freedom of
speech and freedom of the press4 are preferred rights5
355
_______________
4 Sec. 4, Article III of the Constitution provides: “No law shall be
passed abridging the freedom of speech, of expression, or of the press
... .”
5 Butsee Justice Frankfurter’s concurring opinion in Kovacs v.
Cooper, 336 US 77, 90-99 [1949].
356
356 SUPREME COURT REPORTS ANNOTATED
40

In Re: Emil P. Jurado
for they are indispensable preconditions for the exercise of other
freedoms.6 Their status as the cornerstone of our liberties followed
the shift of sovereignty from monarchs to the masses—the
people.7 For the people to be truly sovereign, they must be capable of
rendering enlightened judgments and they cannot acquire this
capability unless they have an unclogged access to information, the
main pipeline of which is the press. Early enough, Madison had the
prescience to warn that “a popular government without popular
information or the means of acquiring it is but a prologue to a farce
or tragedy or perhaps both.”8
The history of press freedom will also reveal that while its
importance has been given lip service, its unabridged exercise was
not won without a costly struggle. Ironically, the attempts to restrict
the newsmen’s pen came from government itself. The attempts were
disguised in different insidious forms.9 They came as sedition laws
which sent newsmen behind bars. They came as tax laws which
impoverished newspaper publishers. Through long, difficult years,
the press survived these assaults.
Nonetheless, the struggle to preserve press freedom is distinct for it
is a story with a first but without a final chapter. In the decade of the
60’s and onwards, a new weapon against press freedom was
unsheathed by government. It was the sword of subpoena. In
Congress as in the courts, it was wielded to pry open newsmen’s
secret sources of information often derogatory to government. The
unbridled use of the subpoena had its silencing effects on the
exercise of press freedom. Common law denied newsmen the right to
refuse to testify concerning information received in
confidence.10 The press has to go to the legislature for protection.
The protection came to be known as shield statutes
_______________
6 Publishing Co. v. Butts, 388 US 130, 145 [1967].
7 Sec. 1, Article II of the Constitution provides: “The Philippines is a
democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them.”
8 6 Writings of James Madison 397 (Hunt ed. 1906).
9 L. Levy, Legacy of Suppression, [1960].
10 8 Annot. 7 ALR 3rd 591, 592-596 [1966] J. Wigmore, Evidence, S.
2286 (McNaughton ed., 1961); Garland v. Torre, 259 F2d 545 (2nd
Cir., 1958); People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 1991 N.E.
415 (1936).
357
VOL. 243, APRIL 6, 1995 357
In Re: Emil P. Jurado
and their scope varied. In the United States, they were of two (2)
types: (1) laws that shield the identities of newsmen’s informants
from disclosure;11 and (2) laws that shield not only the identities of
news sources but also the content of the communicationagainst
disclosure.12 Test cases were also filed in courts seeking a ruling that
a newsman’s right to gather news is constitutionally protected, and
hence, cannot be impaired by subpoenas forcing disclosure of the
identities of their sources of information.13 To date, the American
case law on the matter has yet to jell.
In the Philippines, the shield law is provided by Republic Act No.
1477, approved on June 15, 1956 which prohibits revelation of
“thesource of any news-report or information ... related in confidence
... unless the court or a House or committee of Congress finds that
such revelation is demanded by the security of the State.” R.A. No.
1477 amended R.A. No. 53 by changing the phrase “interest of the
State” to “security of the State.” The change limited the right of the
State to share with newsmen their confidential sources of
information.
41
Prescinding from these premises, let me now slide to the
constitutional balancing made by the majority. I wholeheartedly
agree that except for a more overriding consideration, the Court
should uphold the importance of an orderly administration of justice.
It appears that respondent’s reliance on his constitutional right to
freedom of speech and of the press failed to impress the majority as
an overriding consideration. Among the reasons that obviously
swayed the majority in submerging the significance of freedom of
speech and of the press below that of an orderly administration of
justice were: failure of respondent to obey the invitation to appear
made by the AdHocCommittee, his refusal to reveal the sources of his
information, and the falsity and slants of his columns. In registering
this dissent, I wish to address these reasons and I respectfully posit
the following  adverse effect on the work of the Committee. It does not justify
_______________
11 E.g. Laws of Alabama, Arizona, California, Indiana, Kentucky,
Maryland, Montana, New Jersey, and Ohio.
12 E.g. Laws of Michigan, New York, and Pennsylvania.
13 Garland v. Torre, 259 F2d 545 (2d Cir); In re Goodfader, 45
Hawaii 317, 367 P2d 472 (1961); State v. Buchanan, 205 Ore 244, 436
P2d 729 (1968).
358
358 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
postulates:
First. It should be stressed that respondent Jurado was initially
invited to appear before the Ad HocCommittee tasked
to investigate Reports of Corruption in the Judiciary. The Ad Hoc
Committee is only a fact-finding body as its ordained duty is “to
ascertain the truth” respecting reports on corruption in the judiciary.
As an administrative fact-finding body, its power to compel newsmen
to appear and disclose their secret sources of information
is lesscompared with the same power of Congress while making laws
or the power of courts when litigating actual controversies.
Jurisprudence holds that the power to compel testimony inheres in
the power to legislate for “a legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions
which the legislation is intended to affect or change.”14 Case law
similarly holds that courts can compel newsmen to testify where it is
necessary to avoid miscarriage of justice.15 The majority should not
take to task the respondent for his failure to appear before the Ad
Hoc Committee. His failure to honor its invitation had only a slight
imposing on respondent the severe order of contempt of court.
The majority, however, holds that the respondent was not cited for
contempt for his non-appearance before the Ad Hoc
Committee where he did not explain his other writings in the Manila
Standard but for his falsereport on the alleged Hongkong trip of
some justices and his slanted report on the birthday party of Atty.
Veto attended by some appellate justices.
A close look at the flow and totality of the proceedings against
respondent will, however, belie the stance of the majority. In his
March 1, 1993 Comment, respondent explained the bases of all his
reports regarding corruption in the judiciary, which among others,
assailed Judge Rosalio de la Rosa, Executive Judge of Manila,
Makati’s Magnificent Seven, the Magnificent Seven in the Supreme
Court, the JBC, etc. The majority did not consider this explanation as
immaterial on the ground that he was not being asked to account for
said reports. On the contrary, the 
_______________
14 McGrain v. Daugherty, 273 US 135, 175 (1927).
15 See Garland v. Torre, supra, footnote 13.
42
359
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
explanation of the respondent was minutely dissected in the majority
opinion, and thereafter, it was condemned as a “litany of falsehoods.”
Indeed, no less than four (4) pages of the majority opinion written in
single space were devoted to the discussion of these writings of the
respondent.
Neither does it materially matter that no summons or subpoena was
issued to the respondent by the Ad Hoc Committee. According to the
majority, only an “invitation” to appear was extended to the
respondent. This thin semantical distinction, however, cannot deflate
the fact that an “invitation” from a Committee of this Court carries as
much compulsion as a summons or a subpoena. The February 5,
1993 letter of the Chairman of the Ad HocCommittee to the
respondent tells it all when it stated that said Committee has “...
authority to maintain and enforce order in its proceedings, and to
compel obedience to its processes.”
Second. The letters of invitation to respondent misappreciated the
proper function of the press. The first letter, dated February 1, 1993,
ordered respondent “to give the Committee information that will
assist it in its task, i.e., to definitely and accurately determine the
facts as regards the published rumors and reports of corruption in
the judiciary.” The second letter, dated February 5, 1993,
stated, inter alia, “... we believe you will want to help the Court x x x
by furnishing the Committee with competent evidence, testimonial
or otherwise. Clearly, the purging process cannot be accomplished
without proof, testimonial or otherwise, as you must no doubt
realize, being yourself a lawyer.” I submit that the press is not
an adjunct of the judiciary, any more than is it an annexof the two
(2) other branches of government. As the press is not an extension of
the judiciary, it cannot be used as an investigatory instrument to
purge courts of misfits, especially when the use of the press will
compel it to compromise its role as critic of government. Again, it
should be stressed that the judiciary is not without resources to
investigate and reform itself. It can purge its ranks without
359 compelling the involvement of the press.
Third. The protection of R.A. No. 53, as amended by R.A. No. 1477, to
newsmen should not be diminished as much as possible. Under this
law, there is only one but one clear ground which can force a
newsman to reveal the source of his confidential 
360
360 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
information—when demanded by the security of the State. It is
instructive to remember the case of In re: Angel J. Parazo,16 where
the Court adjudged newsman Parazoin contempt of court for
refusing to divulge the source of his story regarding leakage of
questions in some subjects in the 1948 Bar Examinations. It was
contended by Parazo that under R.A. No. 53, he could only be
compelled to reveal the source of his information when the
“revelation is demanded by the interest of the State.”Parazoargued
that “interest of the State” meant “security of State.” The Court
rejectedParazo’s argument as it held that the two (2) terms are not
synonymous, the first being broader than the second. It then ruled
that the maintenance of high standard of the legal profession
qualifies as an “interest of the State” the promotion of which is a
good ground to compel newsmen to break the confidentiality of their
sources of news. The Court ruling did not sit well with Congress. On
June 15, 1956, Congress enacted R.A. No. 1477 which amended R.A.
53 by changing the phrase “interest of the State” to “security of
State.”
Respondent invoked R.A. No. 53, as amended, as an additional
defense in his favor. The majority opinion, however, shunted aside
respondent’s submission as it held that said law does not protect “a
journalist who deliberately prints lies or distorts the truth.” There is
no disagreement that R.A. No. 53, as amended, does not provide
43
immunity against a blatant falsehood just as the Constitution does
not protect a vicious lie. Precisely, section 1 of the law starts with the
categorical caveat “without prejudice to his liability under the civil
and criminal laws, the publisher, editor, columnist ... cannot be
compelled to reveal the source of any newspaper report or
information ... .” But well to note, the case at bench is not a libel or a
damage suit where we can properly decide, among others, the kind of
falsehood and the proper stage of the proceedings when the Court
could compel a newsman to reveal the source of his information
without violating his freedom of speech and of the press. To my
mind, the case at bench should be and can be resolved by simply
determining whether respondent’s columns, given their falsity and
slant, posed a clear and present danger to our administration of
justice.  to impute malice against respondent. Without proof that respondent
_______________
16 82 Phil. Reports 230 [1948].
361
VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
My humble submission is that the evidence on record failed to prove
this clear and present danger, and hence, there is no need to task
respondent to reveal the sources of his information in order to prove
that his reports about judicial corruption are not patent falsehoods.
The Court should always adopt an approach that is less destructive of
freedom of speech and of the press. I reserve my full view on the
longitude and latitude of a newsman’s right not to reveal the sources
of his information in a more appropriate case.
Fourth.The majority stubbornly stresses that it gave respondent an
“option” and did not compel him to reveal the sources of his
information. Indeed, he was not compelled but he paid a high price
for not revealing the sources of his information. It was held that he
failed to disprove the falsity and slant of his column, hence, was
liable for contempt.
My thesis is that the affidavits on the PLDT affair and Atty. Veto’s
party may have proved the falsity or slant of respondent’s columns.
But mere proof of falsity or slant is not proof that the falsehood or
slant was made knowingly or with reckless disregard of truth to use
the New York Times test. Likewise, proof that respondent did not
verify his facts from the PLDT and travel agency officials and from
Atty. Veto is not proof that he did no verification at all. Indeed, the
evidence does not show that Messrs. Samson, Garcia, and Veto and
Mrs. de la Paz wrote to respondent to give him an opportunity to
correct his errors. In the absence of such an opportunity, it is difficult
knowingly or recklessly disregarded truth, he should not have even
been called upon to disprove the falsity or slant of his columns. He
need not have been given the so-called “option” to reveal or not to
reveal the sources of his information.
There is another aspect of freedom of the press which the majority
failed to consider. The sanctity of a newsman’s source of information
is not only intended to protect a newsman but also the source of his
361
information. When a person transmits confidential information to a
newsman, he is exercising his freedom of speechon condition of
anonymity. In Talley v. California,17 an 
_______________
17 362 US 60 (1960).
362
362 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
ordinance which penalized the distribution of any handbill which did
not identify its author was struck down as unconstitutional. It was
44
held that “identification and fear of reprisal might deter perfectly
peaceful discussions of public matters of importance.”18 It is thus
arguable that a newsman by himself does not have the option to
reveal or not to reveal the identity of his source of information. His
source may have an independentright to the protection of his
anonymity in the exercise of freedom of speech. This issue, however,
need not be resolved in the case at bench but in a more appropriate
setting. Be that as it may, I bewail the precipitate majority ruling that
a newsman has an unqualified option to reveal the confidential
source of his information for its inevitable effect is to discourage
people from giving confidential information to the press. Again, the
impairment of the flow of information to the public will suffer an
irreparable harm.
Fifth. The majority punishes respondent for publishing “stories
shown to be false x x x stories that he made no effort whatsoever to
verify and which, after being denounced as lies, he has refused, or is
unable to substantiate.” The undue weight given to the falsity aloneof
respondent’s columns is unsettling. For after finding respondent’s
columns as false, the majority did not go any further to determine
whether these falsehoods constitute a clear and present danger to the
administration of justice. This libertarian test was originally
espoused by Mr. Justice Holmes in Schenck v. United States19 where
he ruled “the question in every case is whether the words used are
used in such circumstances and are of such nature as to create and
present danger that they will bring about the substantive evils that
the State has a right to prevent.” We have adopted this libertarian
test as early as 1948 in Primicias v. Fugoso20 and which we
reiterated, among others, in the leading case of Navarro v.
Villegas,21 and the companion cases of Reyes v. Bagatsing, and Ruiz
v. Gordon.22
_______________
18 Ibid at p. 65.
19 80 Phil. 71.
20 31 SCRA 731 [1970].
21 125 SCRA 553 [1983].
22 126 SCRA 233 [1983].
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VOL. 243, APRIL 6, 1995 363
In Re: Emil P. Jurado
In the case at bench, I cannot perceive how the respondent’s column
on the alleged Hongkong trip of some justices could have brought
about the substantive evil of subverting our orderly administration of
justice. The affidavits of Mr. Samson, First Vice President of PLDT, of
Mr. Ermin Garcia, Jr., President of CitiWorld Travel Mart
Corporation, and of Mrs. Marissa de la Paz, General Manager of
Philway Travel Corporation merely established the falsity of
respondent’s report. There is nothing in the record, however,
showing the degree how respondent’s false report degraded the
administration of justice. The evidence from which this conclusion
can be deduced is nil. The standing of respondent as a journalist is
not shown. The extent of readership of respondent is not known. His
credibility has not been proved. Indeed, nothing in the record shows
that any person lost faith in our system of justice because of his said
report. Even the losing party in G.R. No. 94374, Eastern Telephone
Philippines, Inc., (ETPI) does not appear to have given any credence
to the said false report. I submit that it is not every falsehood that
should incur the Court’s ire, lest it runs out of righteous indignation.
Indeed, gross falsehoods, vicious lies, and prevarications of paid
hacks cannot deceive the public any more than can they cause this
Court to crumble. If we adopt the dangerous rule that we should
curtail speech to stop every falsehood we might as well abolish
freedom of speech for there is yet to come a man whose tongue tells
only the truth. In any event, we should take comfort in the thought
that falsehoods cannot destroy—only truth does but only to set us
free.
In a similar vein, I reject the conclusion that respondent’s report
about the birthday party of Atty. Veto attended by some justices and
45
judges seriously eroded our administration of justice. Again, there is
not an iota of empirical evidence on record to sustain this irrational
fear. There is less reason to punish respondent for contempt for his
report on Atty. Veto’s party. Unlike respondent’s report about the
justices’ Hongkong trip, his report on Atty. Veto’s party is not false
but only slanted, to use the own description of the majority opinion.
Also, unlike respondent’s report about the justices’ Hongkong trip
which was made while the Court has yet to resolve Eastern
Telephone’s Motion for Reconsideration in G.R. No. 94374, his
report on Atty. Veto’s party does not concern any pending litigation
in this Court.  Defamation Statute. In a
364
364 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
Given these material differences, there is no way to conclude that
respondent’s report on Atty. Veto’s party degraded our
administration of justice. In citing respondent in contempt
for slanting his report on Atty. Veto’s party, the majority betrays its
flaccid respect for freedom of speech and of the press. Respondent is
a columnist and he does not only write straight news reports but
interprets events from his own distinct prism of perception. As a
columnist and like any other columnist, he has his own predilections
and prejudices and he bends his views in accord with his own slant of
faith. I see no reason to penalize respondent for the slants in his
views, however, unpleasant and irreverent they may be to the court.
When we start punishing a columnist for slants in his views, we shall
soon be seeking slits to look for witches among them.
Ironically, the majority cites in support of its non-too-liberal stance
the cases of New York Times Co. v. Sullivan23 and Garrison v.
Louisiana.24 These cases, however, are ground breaking in
importance for they expanded the protection given to freedom of
speech and of the press. New York Times25 restricted the award of
damages in favor of public officials in civil suits for damages arising
out of libel precisely because of their chilling effects on the exercise
of freedom of speech and of the press. To be entitled to damages, the
public official concerned was imposed a very difficult, if not
impossible, burden of proof. He was required to prove that the
defamatory statement was not only false but was made with “actual
malice.”26 This means he has to prove that the defamatory statement
was made with “knowing falsity or with a reckless disregard for the
truth.”27 On the other hand, Garrison did not only reiterate but even
extended the New York Times rule to apply to criminal cases. Mr.
Garrison, a District Attorney of Orleans Parish, Louisiana was
convicted of criminal defamation under the Louisiana Criminal
 
_______________
23 376 US 254.
24 379 US 64.
25 See also Time, Inc. v. Hill, 150 US 374; Curtis Publishing Co. v.
Butts and Walker v. Associated Press, 388 US 130.
26 376 US 254, 279-80.
27 Id.
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In Re: Emil P. Jurado
press conference, he assailed eight (8) judges for their inefficiency,
laziness, excessive vacations, and for refusing to authorize
disbursements to cover the expenses of undercover investigations of
vice in New Orleans. Impugning their motives he said: “... This raises
interesting questions about the racketeer influences on our eight
vacation-minded judges.” The Louisiana State courts rejected
Garrison’s defense anchored on freedom of speech. In reversing the
46
Supreme Court of Louisiana, the United States Federal Supreme
Court thru Mr. Justice Brennan, held that the “New York Times rule
under which the constitutional guaranty of free speech limits state
power in a civil action brought by a public official for criticism of his
official conduct, to an award of damages fora false statement made
with actual malice, that is, with knowledge that it was false or with
reckless disregard of whether it was false or not, likewise limits state
power to impose criminal sanctions for criticism of the official
conduct of public officials.” It struck down as unconstitutional the
Louisiana statute which permitted punishment of false
statements made with ill will, even though they are not made with
knowledge of their falsity or in reckless disregard of whether they
are true or not. It further held that lack of reasonable belief in the
truth of the statements is not the equivalent of reckless disregard of
truth. To quote exactly the ruling: “... Even where the utterance
is false, the great principles of the Constitution which secure freedom
of expression in this area preclude attaching adverse consequences to
any except the knowing or reckless falsehood ... . The public official
rule protects the paramount public interest in a free flow of
information to the people concerning public officials, their servants.
To this end, anything which might touch on an official’s fitness for
office is relevant. Few personal attributes are more germane to
fitness for office than dishonesty, malfeasance, or improper
motivation ... .”
The majority opinion in the case at bench certainly did not follow
the New York Times rule which was reiterated and even expanded
in Garrison. The majority halted after finding that the respondent’s
columns are false or slanted. As aforestated, the affidavits of Messrs.
Samson, Garcia, Jr., and Veto and Mrs. de la Paz merely condemned
as false respondent’s report but did not prove that respondent wrote
his report with knowing or reckless disregard of truth. Yet, the
majority was satisfied that this was  respondent knowingly foisted a falsehood to degrade our
366
366 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
enough evidence to punish respondent for contempt. It ruled: “That
categorical denial logically and justly placed on Jurado the burden of
proving the truth of his grave accusation, or showing that it had been
made through some honest mistake or error committed despite good
faith efforts to arrive at the truth, or if unable to do either of these
things, to offer to atone for the harm caused.” The shift in the burden
of proving reckless disregard of truth to respondent Jurado patently
violates the New York Timesrule. The New York Times rule fixed this
burden of proof on complainants against newsmen. If the New York
Times rule has any value to freedom of speech and of the press, it is
because it made the burden of proof in this kind of cases extremely
difficult to discharge on the part of a complainant against a
newsman. In contrast, the majority opinion made it too easy in favor
of a complainant.
Sixth. The majority opinion also failed to consider that the columns
of respondent dealt with the sensitive subject of corruption in courts.
It cannot be gainsaid that corruption in government is a matter of
highest concern to our citizenry. Yet it is a problem that defies
solution primarily because it is a subject where people in the know
maintain the countenance of a clam. Thus, the prosecution of
corruption in government has not hit a high note and what now
appears as the most effective restraint against corruption in
government is the fear of the light of print. If the light of print
continues to be a strong deterrent against government misdeeds, it is
mainly because newsmen have an unimpeded access to information.
On many an occasion, these confidential sources of information are
the only leads to government malfeasance. To fashion a rule
derogatory of the confidentiality of newsmen’s sources will result in
tremendous loss in the flow of this rare and valuable information to
the press and will prejudice the State’s policy to eliminate corruption
in government. In the absence of clear and convincing evidence that
administration of justice, we should be slow in citing him for
contempt. The New York Times rule correctly warned us that
occasional erroneous statements are “inevitable in free debate ... and
must be protected if the freedoms of expression are to have the
‘breathing space’ that they ‘need, to survive.’” 
367
47

VOL. 243, APRIL 6, 1995
In Re: Emil P. Jurado
Seventh. I appreciate the genuine concern of the majority against
certain abuses committed by some members of the press. Be that as
it may, the abuses of somenewsmen cannot justify an overarching
rule eroding the freedom of allof them. Indeed, the framers of the
Constitution knew that these abuses will be committed by some
newsmen but still, they explicitly crafted Section 4, Article III of the
Constitution to read: “[N]o law shall be passed abridging the freedom
of speech, of expression, or of the press ... .” Madison stressed that
“some degree of abuse is inseparable from the proper use of
everything, and in no instance is this more true than in that of the
press.”28 There is an appropriate remedy against abusive newsmen.
I submit, however, that the remedy is not to be too quick in wielding
the power of contempt for that will certainly chain the hands of many
newsmen. Abusive newsmen are bad but laundered news is worse.
Eighth. Again, with due respect, I submit that the majority
misappreciates the role of the press as a critic of government in a
democratic society. The Constitution did not conceive the press to act
as the cheer leader of government, including the judiciary. Rather,
the press is the agent29of the people when it gathers news, especially
news derogatory to those who hold the reins of government. The
agency is necessary because the people must have all available
information before they exercise their sovereign judgment. As well
observed: “The newspapers, magazines, and other journals of the
country, it is safe to say, have shed and continue to shed, more light
on the public and business affairs of the nation than any other
instrument of publicity; and since informed public opinion is the
most potent of all restraints upon misgovernment the suppression or
abridgment of the publicity afforded by a free press cannot be
regarded otherwise than with grave concern.”30As agent of the
people, the most important function of the press in a free society is to
inform and it cannot  Emiliano Jurado guilty of contempt of court.
_______________
28 4 Elliot’s Debates on the Federal Constitution 571 [1876] as cited
367 in 48 Fordham Law Review 694, 701 [1980].
29 See dissenting opinion of Justice Powell in Saxbe v. Washington
Post Co., 417 US 843, 863 [1974].
30 Grosjean v. American Press Co., 297 US 233, 250 [1936].
368
368 SUPREME COURT REPORTS ANNOTATED
In Re: Emil P. Jurado
inform if it is uninformed. We should be wary when the independent
sources of information of the press dry up, for then the press will end
up printing “praise” releases and that is no way for the people to
know the truth.
In sum, I submit that the equation chosen by the majority has the
pernicious effects of hobbling the writing hand of newsmen and of
chilling the sources of information of the press. The majority can
snicker against “bleeding heart” liberalism but this is a vain attempt
to use a fig leaf to conceal its niggardly regard for freedom of speech
and of the press. In a large measure, I fear that the majority opinion
will weaken the press as an informed and informative source of
information of the sovereign people. In so doing, it will unwittingly
erode the people’s right to discover the truth. The protection we give
to the sanctity of the sources of information of the press is for the
benefit of the people. It is designed to benefit all of us, to keep us
above the cloud of ignorance. Democracy cannot bloom where
sovereignty is rooted on the top soil of an ignorant mass.
I vote not to hold the respondent in contempt of court.
48
Notes.—The right of privacy like right of free expression is not an
absolute right. The right cannot be invoked to resist publication and
dissemination of matters of public interest. (Ayer Productions Pty.
Ltd. vs. Capulong, 160 SCRA 861 [1988])
No clear and present danger of any violation of any right to privacy
that private respondent could lawfully assert. (Ibid.)
The clear and present danger test is not the only test which has been
recognized and applied by courts for making out the appropriate
limits of freedom of speech and assembly. (Zaldivar vs.
Sandiganbayan, 170 SCRA 1 [1989])
Punishment for contempt of court is a remedial, preservative or
coercive act rather than a vindictive or punitive one. (Facinal vs.
Cruz, 213 SCRA 238 [1992])
The freedom of speech and of the press, or of expression, which the
Bill of Rights guarantees, is not an absolute right. (National Press
Club vs. Commission on Elections, 207 SCRA 1 [1992])
G.R. No. 118971. September 15, 1999.*
RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE
REGIONAL TRIAL COURT OF MANILA, BRANCH 40, and THE
PEOPLE OF THE PHILIPPINES, respondents.
Criminal Law; Libel; A person cannot claim to have been the
source of only a few statements in an article and point to other
parties as the source of the rest when he admits that he was
correctly identified as the spokesperson during the interview.—
Petitioner claims he was “unfairly singled out” as the source of the
statements in the article when any member of the 38 complainant-
families could have been the source of the alleged libelous
statements. x x x It is true petitioner did not directly admit that he
was the source of the statements in the questioned article. What he
said in his sworn statement was that the contents of the article are
true in almost all respects, thus: x x x This was likewise what he
stated in his testimony in court both on direct and on cross-
examination. However, by claiming that what he had told the
reporter was made by him in the performance of a civic duty,
petitioner in effect admitted authorship of the article and not only of
the statements attributed to him therein, to wit: x x x Petitioner
cannot claim to have been the source of only a few statements in the
article in question and point to the other parties as the source of the
rest, when he admits that he was correctly identified as the
spokesperson of the families during the interview.
49
Same; Same; Criminal Procedure; While the general rule is that
the information must set out the particular defamatory words
verbatim and as published and that a statement of their substance
is insufficient, a defect in this regard may be cured by evidence.—
Petitioner points out that the information did not set out the entire
news article as published. In fact, the second statement attributed to
petitioner was not included in the information. But, while the general
rule is that the information must set out the particular defamatory
words verbatim and as published and that a statement of their
substance is insufficient, a defect in this regard may be cured by  heard the libelous statement, for “a man’s reputation is the estimate
_______________
* EN BANC.
461
VOL. 314, SEPTEMBER 15, 1999
Vasquez vs. Court of Appeals
evidence. In this case, the article was presented in evidence, but
petitioner failed to object to its introduction. Instead, he engaged in
the trial of the entire article, not only of the portions quoted in the
information, and sought to prove it to be true. In doing so, he waived
objection based on the defect in the information. Consequently, he
cannot raise this issue at this late stage.
Same; Same; Elements.—To find a person guilty of libel under Art.
353 of the Revised Penal Code, the following elements must be
proved: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice.
Same; Same; Same; When an Allegation Deemed Defamatory.—An
allegation is considered defamatory if it ascribes to a person the
commission of a crime, the possession of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or
which tends to blacken the memory of one who is dead.
Same; Same; Same; There is publication if the material is
communicated to a third person—it is not required that the person
defamed has read or heard about the libelous remark.—There is
publication if the material is communicated to a third person. It is
not required that the person defamed has read or heard about the
libelous remark. What is material is that a third person has read or
in which others hold him, not the good opinion which he has of
himself.”
Same; Same; Same; To satisfy the element of identifiability, it must
be shown that at least a third person or a stranger was able to
identify the defamed person as the object of the defamatory
statement.—To satisfy the element of identifiability, it must be
shown that at least a third person or a stranger was able to identify
461
him as the object of the defamatory statement.
Same; Same; Same; Words and Phrases; There is no merit to the
contention that “landgrabbing,” as charged in the information, has
a technical meaning in law.—There is no doubt that the first three
elements are present. The statements that Olmedo, through
connivance with NHA officials, was able to obtain title to several lots 
462
462 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
in the area and that he was involved in a number of illegal activities
(attempted murder, gambling and theft of fighting cocks) were
clearly defamatory. There is no merit in his contention that “land-
grabbing,” as charged in the information, has a technical meaning in
law. Such act is so alleged and proven in this case in the popular
sense in which it is understood by ordinary people.
50
Same; Same; Same; Same; For the purpose of determining the
meaning of any publication alleged to be libelous that construction
must be adopted which will give to the matter such a meaning as is
natural and obvious in the plain and ordinary sense in which the
public would naturally understand what was uttered.—As held
in United States v. Sotto: . . . [F]or the purpose of determining the
meaning of any publication alleged to be libelous “that construction
must be adopted which will give to the matter such a meaning as is
natural and obvious in the plain and ordinary sense in which the
public would naturally understand what was uttered. The published
matter alleged to be libelous must be construed as a whole. In
applying these rules to the language of an alleged libel, the court will
disregard any subtle or ingenious explanation offered by the
publisher on being called to account. The whole question being the
effect the publication had upon the minds of the readers, and they
not having been assisted by the offered explanation in reading the
article, it comes too late to have the effect of removing the sting, if
any there be, from the words used in the publication.”
Same; Same; Same; Under Article 361 of the Revised Penal Code, if
the defamatory statement is made against a public official with
respect to the discharge of his official duties and functions and the
truth of the allegation is shown, the accused will be entitled to an
acquittal even though he does not prove that the imputation was
published with good motives and for justifiable ends.—The question
is whether from the fact that the statements were defamatory, malice
can be presumed so that it was incumbent upon petitioner to
overcome such presumption. Under Art. 361 of the Revised Penal
Code, if the defamatory statement is made against a public official
with respect to the discharge of his official duties and functions and
the truth of the allegation is shown, the accused will be entitled to an
acquittal even though he does not prove that the imputation was
published with good motives and for justifiable ends.
463
VOL. 314, SEPTEMBER 15, 1999
Vasquez vs. Court of Appeals
Same; Same; Freedom of Expression; Public Officers; The
recognition of the right and duty of every citizen in a democracy to
see to it that public duty is discharged faithfully and well by those
on whom such duty is incumbent is inconsistent with any
requirement placing on him the burden of proving that he acted
with good motives and for justifiable ends.—In denouncing the
barangay chairman in this case, petitioner and the other residents of
the Tondo Foreshore Area were not only acting in their self-interest
but engaging in the performance of a civic duty to see to it that public
duty is discharged faithfully and well by those on whom such duty is
incumbent. The recognition of this right and duty of every citizen in a
democracy is inconsistent with any requirement placing on him the
burden of proving that he acted with good motives and for justifiable
ends.
Same; Same; Same; Same; “Actual Malice” Rule; Even if the
defamatory statement is false, no liability can attach if it relates to
official conduct, unless the public official concerned proves that the
statement was made with actual malice—that is, with knowledge
that it was false or with reckless disregard of whether it was false
or not.—Even if the defamatory statement is false, no liability can
attach if it relates to official conduct, unless the public official
concerned proves that the statement was made with actual malice—
that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. This is the gist of the ruling in the
landmark case of New York Times v. Sullivan, which this Court has
cited with approval in several of its own decisions. This is the rule of
“actual malice.” In this case, the prosecution failed to prove not only
that the charges made by petitioner were false but also that petitioner
made them with knowledge of their falsity or with reckless disregard
of whether they were false or not.
Same; Same; Same; Evidence; Burden of Proof; A rule placing on
the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making
such allegations would not only be contrary to Article 361 of the
463 Revised Penal Code but would, above all, infringe on the
constitutionally guaranteed freedom of expression.—A rule placing
on the accused the burden of showing the truth of allegations of
official misconduct and/or good motives and justifiable ends for
51
making such allegations would not only be contrary to Art. 361 of the
Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would
deter citizens  Housing Authority (NHA) General Manager Lito Atienza regarding
464
464 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
from performing their duties as members of a self-governing
community. Without free speech and assembly, discussions of our
most abiding concerns as a nation would be stifled. As Justice
Brandeis has said, “public discussion is a political duty” and the
“greatest menace to freedom is an inert people.”
APPEAL from a decision of the Regional Trial Court of Manila, Br.
40.
The facts are stated in the opinion of the Court.
     Free Legal Assistance Group for petitioner.
     Tumaru, Guerrero and Tumaru Law Offices for private
respondent.
MENDOZA, J.:
The question for determination in this case is the liability for libel of
a citizen who denounces a barangay official for misconduct in office.
The Regional Trial Court of Manila, Branch 40, found petitioner
guilty and fined him P1,000.00 on the ground that petitioner failed
to prove the truth of the charges and that he was “motivated by
vengeance in uttering the defamatory statement.” On appeal, the
Court of Appeals, in a decision1 dated February 1, 1995, affirmed.
Hence, this petition for review. The decision appealed from should be
reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a
resident of the Tondo Foreshore Area. Sometime in April 1986, he
and some 37 families from the area went to see then National
their complaint against their Barangay Chairman, Jaime Olmedo.
After their meeting with Atienza and other NHA officials, petitioner
and his companions were met and interviewed by newspaper
reporters at the NHA
_______________
1 Per Associate Justice Celia Lipana-Reyes and concurred in by
Associate Justices Asaali S. Isnani and Corona Ibay-Somera.
465
VOL. 314, SEPTEMBER 15, 1999 465
Vasquez vs. Court of Appeals
compound concerning their complaint. The next day, April 22, 1986,
the following news article2 appeared in the newspaper Ang Tinig ng
Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38
mahihirap na pamilya sa Tondo Foreshore Area na umano’y
inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority
sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo
ng barangay 66, Zone 6, Tondo Foreshore Area, sa mga project
manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga)
pamilyang apektado, na umaabot lang sa 487.87 metro kuwadrado
52
ang kabuuan ng mga lupa na kinatitirikan ng mga barung-barung ng
38 pamilya.
“Naninirahan na kami sa mga lupang nabanggit sapul 1950 at
pinatunayan sa mga survey ng NHA noong nakalipas na taon na may
karapatan kami sa mga lupang ito ng pamahalaan,” ani Vasquez.
“Pawang lupa ng gobyerno ang mga lupa at ilegal man na
patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga
project manager at legal officers ng NHA,” sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city
hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng
pulisya ang barangay chairman kaya “nakalusot” ang mga ginawa
nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din
umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at
maging sa mga nakawan ng manok.
“Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na
mga taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang
tangkang pagpatay sa akin kaugnay ng pagrereklamo sa
pangangamkam ng lupa noong 1984,” sabi pa ni Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel
against petitioner alleging that the latter’s state-
_______________
2 Exh. A-1, Records, p. 77.
466
466 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
ments cast aspersions on him and damaged his reputation. After
conducting preliminary investigation, the city prosecutor filed the
following information in the Regional Trial Court of Manila, Branch
40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of
libel committed as follows:
That on or about April 22, 1986, in the city of Manila, Philippines,
the said accused, with malicious intent of impeaching the reputation
and character of one Jaime Olmedo, chairman of Barangay 66, Zone
6 in Tondo, Manila, and with evident intent of exposing him to public
hatred, contempt, ridicule, did then and there willfully, unlawfully,
feloniously and maliciously caused the publication of an article
entitled “38 Pamilya Inagawan ng Lupa” in Ang Tinig ng Masa, a
daily newspaper sold to the public and of general circulation in the
Philippines in its April 22, 1986 issue, which portion of the said
article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38
mahihirap na pamilya sa Tondo Foreshore Area na umano’y
inagawan ng lupa ng kanilang barangay chairman sa
pakikipagsabwatan sa ilang pinuno ng National Housing Authority
sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo
ng barangay 66, Zone 6, Tondo Foreshore Area sa mga project
manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
x x x “Pawang lupa ng gobyerno ang mga lupa at ilegal man na
patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga
project manager at legal officers ng NHA,” sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city
hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng
pulisya ang barangay chairman kaya “nakalusot” ang mga ginawa
nitong katiwalian. Bukod sa pagkamkam ng mga lupaing gobyerno,
53
kasangkot din umano si Olmedo sa mga ilegal na pasugalan sa
naturang lugar at maging sa mga nakawan ng manok. x x x
with which statements, the said accused meant and intended to
convey, as in fact he did mean and convey false and malicious
imputations that said Jaime Olmedo is engaged in landgrabbing and
467
VOL. 314, SEPTEMBER 15, 1999
Vasquez vs. Court of Appeals
involved in illegal gambling and stealing of chickens at the Tondo
Foreshore Area, Tondo, Manila, which statements, as he well knew,
were entirely false and malicious, offensive and derogatory to the
good name, character and reputation of said Jaime Olmedo, thereby
tending to impeach, besmirch and destroy the honor, character and
reputation of Jaime Olmedo, as in fact, the latter was exposed to
dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty,
whereupon the case was tried. The prosecution presented Barangay
Chairman Olmedo and his neighbor, Florentina Calayag, as
witnesses. On the other hand, the defense presented Ciriaco Cabuhat,
Nicasio Agustin, Estrelita Felix, Fernando Rodriguez—all residents of
the Tondo Foreshore Area—and petitioner as its witnesses.
On May 28, 1992, the trial court rendered judgment finding
petitioner guilty of libel and sentencing him to pay a fine of
P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence,
this petition for review. Petitioner contends that—
. I.THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT PINPOINTING PETITIONER
AS THE SOURCE OF THE ALLEGED LIBELOUS ARTICLE.
. II.THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT THAT PETITIONER IMPUTED
THE QUESTIONED ACTS TO COMPLAINANT.
. III.THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT THAT THE ALLEGED
IMPUTATIONS WERE MADE MALICIOUSLY.
. IV.THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT WHICH FAILED TO
APPRECIATE PETITIONER’S DEFENSE OF TRUTH.
467
. V.THE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE TRIAL COURT THAT ALL THE ELEMENTS OF
LIBEL WERE PROVEN.
468
468 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
We will deal with these contentions in the order in which they are
made.
First. Petitioner claims he was “unfairly singled out” as the source of
the statements in the article when any member of the 38
complainant-families could have been the source of the alleged
libelous statements.3 The reference is to the following portion of the
decision of the Court of Appeals:
. . . In his sworn statement, appellant admitted he was the source of
the libelous article (Exh. “B”). He affirmed this fact when he testified
in open court as follows: That his allegation on the act of
landgrabbing by Olmedo was based on the alleged report and
pronouncements of the NHA representatives (p. 5, tsn, Oct. 18,
1989); that said allegations were made by him before the local press
people in the pursuit of fairness and truthfulness and not in bad faith
(pp. 8-9, id.); that the only inaccurate account in the published
article of “Ang Tinig ng Masa” is the reference to the 487.87 sq. m.
54
lot, on which Olmedo’s residence now stands, attributed by the
reporter as the lot currently occupied by appellants and his fellow
complainants (pp. 4-5, tsn, Nov. 15, 1989; pp. 4-5, tsn, January 15,
1990); and that after the interview, he never expected that his
statement would be the cause of the much-publicized libelous article
(pp. 4-6, tsn, Nov. 15, 1989).4
It is true petitioner did not directly admit that he was the source of
the statements in the questioned article. What he said in his sworn
statement5 was that the contents of the article are true in almost all
respects, thus:
9. Tama ang nakalathala sa pahayagang “Ang Masa” maliban na lang
sa tinutukoy na ako at ang mga kasamahang maralitang taga-lungsod
ay nakatira sa humigit kumulang 487.87 square meters sapagkat ang
nabanggit na 487.87 square meters ay siyang kinatitirikan ng bahay
ni Barangay Chairman Olmedo kung saan nakaloob ang anim na lote
—isang paglabag sa batas o regulasyon ng NHA;
_______________
3 Petition, pp. 9-12; Rollo, pp. 17-20.
4 CA Decision, p. 4; Id., p. 47.
5 Exh. B; Records, p. 79. (Emphasis added)
469
VOL. 314, SEPTEMBER 15, 1999
Vasquez vs. Court of Appeals
10. Ang ginawa kong pahayag na nailathala sa “Ang Masa” ay sanhi
ng aking nais na maging mabuting mamamayan at upang maituwid
ang mga katiwaliang nagaganap sa Tondo Foreshore Area kung saan
ako at sampu ng aking mga kasamang maralitang tagalungsod ay
apektado at naaapi.
This was likewise what he stated in his testimony in court both on
direct6 and on cross-examination.7 However, by 
_______________
6 TSN, pp. 3-4, Nov. 15, 1989. 
ATTY. VIRGILIO Mr. Vasquez, you are charged with having [made] a
OCAYA— statement that was reflected in the Pahayagang [Ang]
Masa. Where was this alleged statement taken?
A— What I remember, sir, the reporter got the statement
from the National Housing Authority, and we were
many at that time that were being interviewed by the
reporters, sir.
....
Q— Is that [report] reflected in the Pahayagang [Ang] Masa
an accurate report in all aspects?
A— There are some which are correct and some which are
wrong, sir.
Q— Which are those which are not correct?
A— Regarding the statement that I was one of those whose
residence and lot area is around more than 400 sq.
469 meters, sir.
7 TSN, p. 5, Jan. 15, 1990. 
[ATTY. CHARLIE Tell us, Mr. Witness, you said in your affidavit that part
TUMARU]— of the contents of the publication “Ang Masa” was not
correct which pertains to 487.87 square meters.
However, you were able to make that conclusion when
you were able to read that part of the publication, “Ang
55

Masa.”
A— No, sir, I told you, sir, that the contents of my sworn
statement is correct. But some portion of the newspaper
“Ang Masa” particularly the portion regarding the
487.87 square meters wherein me and my companions
were living, that is not correct because the lot was
occupied by the barangay chairman Olmedo and the lot
was owned by the government.
470
470 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
claiming that what he had told the reporter was made by him in the
performance of a civic duty, petitioner in effect admitted authorship
of the article and not only of the statements attributed to him
therein, to wit:
“Pawang lupa ng gobyerno ang mga lupa at ilegal man na
patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga
project manager at legal officers ng NHA,” sabi ni Vasquez.
....
“Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na
mga taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang
tangkang pagpatay sa akin kaugnay ng pagrereklamo sa
pangangamkam ng lupa noong 1984,” sabi pa ni Vasquez.
Petitioner cannot claim to have been the source of only a few
statements in the article in question and point to the other parties as
the source of the rest, when he admits that he was correctly identified
as the spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the
entire news article as published. In fact, the second statement
attributed to petitioner was not included in the information. But,
while the general rule is that the information must set out the
particular defamatory words verbatim and as published and that a
statement of their substance is insufficient,8 a defect in this regard
may be cured by evidence.9 In this case, the article was presented in
evidence, but petitioner failed to object to its introduction. Instead,
he engaged in the trial of the entire article, not only of the portions
quoted in the information, and sought to prove it to be true. In doing
so, he waived objection based on the defect in the information.
Consequently, he cannot raise this issue at this late stage.10
_______________
8 United States v. Eguia, 38 Phil. 857 (1918).
9 See People v. Burgos, 59 Phil. 375 (1934).
10 Revised Rules on Criminal Procedure, Rule 117, §8; People v.
Garcia, 281 SCRA 463 (1997).
471
VOL. 314, SEPTEMBER 15, 1999 471
Vasquez vs. Court of Appeals
Third. On the main issue whether petitioner is guilty of libel,
petitioner contends that what he said was true and was made with
good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal
Code, the following elements must be proved: (a) the allegation of a
discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of
malice.11
56
An allegation is considered defamatory if it ascribes to a person the
commission of a crime, the possession of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or
which tends to blacken the memory of one who is dead.12
There is publication if the material is communicated to a third
person.13 It is not required that the person defamed has read or
heard about the libelous remark. What is material is that a third
person has read or heard the libelous statement, for “a man’s
reputation is the estimate in which others hold him, not the good
opinion which he has of himself.”14
On the other hand, to satisfy the element of identifiability, it must be
shown that at least a third person or a stranger was able to identify
him as the object of the defamatory statement.15
Finally, malice or ill will must be present. Art. 354 of the Revised
Penal Code provides:
Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
_______________
11 Daez v. Court of Appeals, 191 SCRA 61 (1990).
12 Revised Penal Code, Art. 353.
13 M.H. Newell, The Law on Slander and Libel in Civil and Criminal
Cases §175 (1924).
14 Alonzo v. Court of Appeals, 241 SCRA 51 (1995).
15 Kunkle v. Cablenews-American, 42 Phil. 757 (1922).
472
472 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
. 1.A private communication made by any person to another in
the performance of any legal, moral or security duty; and
. 2.A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of their
functions.
In this case, there is no doubt that the first three elements are
present. The statements that Olmedo, through connivance with NHA
officials, was able to obtain title to several lots in the area and that he
was involved in a number of illegal activities (attempted murder,
gambling and theft of fighting cocks) were clearly defamatory. There
is no merit in his contention that “landgrabbing,” as charged in the
information, has a technical meaning in law.16 Such act is so alleged
and proven in this case in the popular sense in which it is understood
by ordinary people. As held in United States v. Sotto:17
. . . [F]or the purpose of determining the meaning of any publication
alleged to be libelous “that construction must be adopted which will
give to the matter such a meaning as is natural and obvious in the
plain and ordinary sense in which the public would naturally
understand what was uttered. The published matter alleged to be
libelous must be construed as a whole. In applying these rules to the
language of an alleged libel, the court will disregard any subtle or
ingenious explanation offered by the publisher on being called to
account. The whole question being the effect the publication
_______________
16 In Republic v. Court of Appeals, 94 SCRA 865 (1979), usurpation
or illegal appropriation of 50 hectares of state-owned urban land was
57
considered as “landgrabbing.” Petitioner, on the other hand, cites the
concurring opinion of Justice Ramon C. Aquino in Tahanan
Development Corporation v. Court of Appeals, 118 SCRA 273, 325
(1982) that landgrabbing may be perpetrated by (1) actual and
physical usurpation, (2) expanded survey, (3) fake Spanish titles, and
(4) reconstitution of fake Torrens titles, registration decrees, or
judgments in land registration cases. Petition, p. 15; Rollo, p. 23.
17 38 Phil. 666, 672-673 (1918).
473
VOL. 314, SEPTEMBER 15, 1999 473
Vasquez vs. Court of Appeals
had upon the minds of the readers, and they not having been assisted
by the offered explanation in reading the article, it comes too late to
have the effect of removing the sting, if any there be, from the words
used in the publication.”
Nor is there any doubt that the defamatory remarks referred to
complainant and were published. Petitioner caused the publication of
the defamatory remarks when he made the statements to the
reporters who interviewed him.18
The question is whether from the fact that the statements were
defamatory, malice can be presumed so that it was incumbent upon
petitioner to overcome such presumption. Under Art. 361 of the
Revised Penal Code, if the defamatory statement is made against a
public official with respect to the discharge of his official duties and
functions and the truth of the allegation is shown, the accused will be
entitled to an acquittal even though he does not prove that the
imputation was published with good motives and for justifiable
ends.19
In this case, contrary to the findings of the trial court, on which the
Court of Appeals relied, petitioner was able to prove the truth of his
charges against the barangay official. His allegation that, through
connivance with NHA officials, complainant was able to obtain title
to several lots at the Tondo Foreshore Area was based on the
letter20 of NHA In-
_______________
18 TSN, pp. 3-4, Nov. 15, 1989.
19 Art. 361 provides:
Proof of the truth.—In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with
good motives and for justifiable ends, the defendants shall be
acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation
shall have been made against Government employees with respect to
facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation
made by him, he shall be acquitted.
20 Exh. 12; Records, pp. 238-239.
474
474 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
spector General Hermogenes Fernandez to petitioner’s counsel
which reads:
09 August 1983

58
Atty. Rene V. Sarmiento  Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of
Free Legal Assistance Group (FLAG)  Jaime Olmedo, with an area of 47.40 sq. m. The lot assigned to
55 Third Street  Chairman Olmedo has a total area of 487.87 sq. m.
New Manila, Quezon City
. 2.Block 261, SB 8, Area III
Dear Atty. Sarmiento:
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of
In connection with your request that you be furnished with a copy of 151.67 sq. m. A four-door apartment owned by Mr. Olmedo is being
the results of the investigation regarding the complaints of some rented to uncensused residents.
Tondo residents against Chairman Jaime Olmedo, we are providing
you a summary of the findings based on the investigation conducted 475
by our Office which are as follows:
VOL. 314, SEPTEMBER 15, 1999 475
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime
Olmedo’s present structure is constructed on six lots which were
awarded before by the defunct Land Tenure Administration to Vasquez vs. Court of Appeals
different persons as follows:
3. Block 262, SB 8, Area III
Lot 4 — Juana Buenaventura - 79.76 sq. m.
Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo,
Lot 6 — Servando Simbulan - 48.50 sq. m. but this lot is not yet titled.

Lot 7 — Alfredo Vasquez - 78.07 sq. m. 4. Block 256, SB 5, Area III

Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her

Lot 8 — Martin Gallardo
Lot 9 — Daniel Bayan
Lot 1 — Fortunato de Jesus
- 78.13 sq. m.
structure is erected on a non-titled lot. The adjacent lot is titled in the
name of Victoria. It was issued OCT No. 10217 with an area of 202.23
- 70.87 sq. m. sq. m. Inside this compound is another structure owned and
occupied by Amelia Dofredo, a censused houseowner. The titled lot
- 85.08 sq. m. (OIT No. 7800) of Victoria now has an area of 338.20 sq. m.

The above-mentioned lots were not yet titled, except for Lot 1. For your information.
Fortunato de Jesus sold the said lot to a certain Jovita Bercasi, a
sister-in-law of Jaime Olmedo. The other remaining lots were either (s/t) HERMOGENES C. FERNANDEZ 
sold to Mr. Olmedo and/or to his immediate relatives. Inspector General      
Public Assistance & Action Office

59
In addition, petitioner acted on the basis of two memoranda,21 both
dated November 29, 1983, of then NHA General Manager Gaudencio
Tobias recommending the filing of administrative charges against the
NHA officials “responsible for the alleged irregular consolidation of
lots [in Tondo to Jaime and Victoria Olmedo.]”
With regard to the other imputations made by petitioner against
complainant, it must be noted that what petitioner stated was that
various charges (for attempted murder against petitioner, gambling,
theft of fighting cocks) had been filed by the residents against their
barangay chairman but these had all been dismissed. Petitioner was
able to show that Olmedo’s involvement in the theft of fighting cocks
was the subject of an affidavit-complaint,22 dated October 19, 1983,
signed by Fernando Rodriguez and Ben Lareza, former barangay
tanods of Barangay 66, Zone 6, Tondo. Likewise, petitioner
presented a resolution,23 dated March 10, 1988, of the Office of the
Special Prosecutor in TBP-87-03694, stating  of every citizen in a democracy is inconsistent with any requirement
_______________
21 Exhs. 3 and 4; Records, pp. 225-226.
22 Exh. 17; Id., p. 251.
23 Exh. 16; Id., pp. 246-250.
476
476 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
that charges of malversation and corrupt practices had been filed
against Olmedo and nine (9) other barangay officials but the same
were dismissed. Indeed, the prosecution’s own evidence bears out
petitioner’s statements. The prosecution presented the
resolution24 in TBP Case No. 84-01854 dismissing the charge of
attempted murder filed by petitioner against Jaime Olmedo and his
son-in-law, Jaime Reyes. The allegation concerning this matter is
thus true.
It was error for the trial court to hold that petitioner “only tried to
prove that the complainant [barangay chairman] is guilty of the
crimes alluded to; accused, however, has not proven that the
complainant committed the crimes.” For that is not what petitioner
said as reported in the Ang Tinig ng Masa. The fact that charges had
been filed against the barangay official, not the truth of such charges,
was the issue.
In denouncing the barangay chairman in this case, petitioner and the
other residents of the Tondo Foreshore Area were not only acting in
their self-interest but engaging in the performance of a civic duty to
see to it that public duty is discharged faithfully and well by those on
whom such duty is incumbent. The recognition of this right and duty
placing on him the burden of proving that he acted with good
motives and for justifiable ends.
For that matter, even if the defamatory statement is false, no liability
can attach if it relates to official conduct, unless the public official
concerned proves that the statement was made with actual malice—
that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. This is the gist of the ruling in the
landmark case of New York Times v. Sullivan,25 which this Court
has cited with approval 
_______________
24 Exhs. D to D-2; Id., pp. 289-291.
25 376 U.S. 254, 11 L.Ed.2d 686 (1964). For a fascinating account of
this case, see Anthony Lewis, Make No Law—The Sullivan Case and
the First Amendment (1991).
477
VOL. 314, SEPTEMBER 15, 1999 477
60

Vasquez vs. Court of Appeals
in several of its own decisions.26 This is the rule of “actual malice.”
In this case, the prosecution failed to prove not only that the charges
made by petitioner were false but also that petitioner made them
with knowledge of their falsity or with reckless disregard of whether
they were false or not.
A rule placing on the accused the burden of showing the truth of
allegations of official misconduct and/or good motives and justifiable
ends for making such allegations would not only be contrary to Art.
361 of the Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such a rule would
deter citizens from performing their duties as members of a self-
governing community. Without free speech and assembly,
discussions of our most abiding concerns as a nation would be
stifled. As Justice Brandeis has said, “public discussion is a political
duty” and the “greatest menace to freedom is an inert people.”27
Complainant contends that petitioner was actuated by vengeful
political motive rather than by his firm conviction that he and his
fellow residents had been deprived of a property right because of acts
attributable to their barangay chairman. The Court of Appeals,
sustaining complainant’s contention, held:
That the said imputations were malicious may be inferred from the
facts that appellant and complainant are enemies, hence, accused
was motivated by vengeance in uttering said defamatory statements
and that accused is a leader of Ciriaco Cabuhat who was defeated by
complainant when they ran for the position of barangay captain. . . .
28
_______________
26 Lopez v. Court of Appeals, 145 Phil. 219 (1970); Mercado v. Court
of First Instance, 201 Phil. 565(1982); Babst v. National Intelligence
Board, 132 SCRA 316, 325 (1984) (Fernando, C.J., concurring).
27 Whitney v. California, 247 U.S. 357, 375, 71 L.Ed. 1095, 1105
(1927) (concurring).
28 CA Decision, p. 5; Rollo, p. 48.
478
478 SUPREME COURT REPORTS ANNOTATED
Vasquez vs. Court of Appeals
As already stated, however, in accordance with Art. 361, if the
defamatory matter either constitutes a crime or concerns the
performance of official duties, and the accused proves the truth of his
charge, he should be acquitted.29
Instead of the claim that petitioner was politically motivated in
making the charges against complainant, it would appear that
complainant filed this case to harass petitioner. Art. 360 of the
Revised Penal Code provides:
Persons responsible.—Any person who shall publish, exhibit, or
cause the publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business
manager of a daily newspaper, magazine or serial publication, shall
be responsible for the defamations contained therein to the same
extent as if he were the author thereof . . . .
Yet, in this case, neither the reporter, editor, nor the publisher of the
newspaper was charged in court. What was said in an analogous
case30 may be applied mutatis mutandis to the case at bar:
It is curious that the ones most obviously responsible for the
publication of the allegedly offensive news report, namely, the
editorial staff and the periodical itself, were not at all impleaded. The
charge was leveled against the petitioner and, “curiouser” still, his
61
_______________
29 Compare: “The third paragraph of Art. 361 must have reference to
the two cases referred to in the second paragraph where proof of the
truth may be admitted, namely: (1) if the act or omission imputed
constitutes a crime; and (2) if the imputation not constituting a crime
is made against Government employees with respect to facts related
to the discharge of their duties. The question may arise whether or
not it is necessary to show that the accused who proved the truth of
the imputation published it with good motives and for justifiable
ends in order that he may be acquitted. It is believed that since the
accused did the public a service, proof of his good motives and
justifiable ends is not necessary.” 2 Luis B. Reyes, The Revised Penal
Code 361 (1981).
30 Manuel v. Paño, 172 SCRA 225 (1989).
479
     Davide,
Jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Qu
isumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-
Santiago, JJ.,concur.
Appealed decision reversed; Petitioner acquitted.
Notes.—Jurisdiction over libel cases are still lodged with the
Regional Trial Courts pursuant to Article 360 of the Revised Penal
Code. (Manzano vs. Valera, 292 SCRA 66[1998])
In order to maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that he be named; It is not
sufficient that the offended party recognized himself as the person
attacked or defamed, but it must be shown that at least a third
person could identify him as the object of the libelous publication.
(Borjal vs. Court of Appeals, 301 SCRA 1 [1999])

VOL. 314, SEPTEMBER 15, 1999 479

Vasquez vs. Court of Appeals

clients who have nothing to do with the editorial policies of the

newspaper. There is here a manifest effort to persecute and
intimidate the petitioner for his temerity in accusing the ASAC
agents who apparently enjoyed special privileges—and perhaps also
immunities—during those oppressive times. The non-inclusion of the
periodicals was a transparent hypocrisy, an ostensibly pious if not at
all convincing pretense of respect for freedom of expression that was
in fact one of the most desecrated liberties during the past
despotism.31

WHEREFORE, the decision of the Court of Appeals is REVERSED

and the petitioner is ACQUITTED of the crime charged.

SO ORDERED.

62

 
G.R. No. 126466. January 14, 1999.*
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN,
petitioners, vs.COURT OF APPEALS and FRANCISCO
WENCESLAO, respondents.
Actions; Libel; In order to maintain a libel suit, it is essential that
the victim be identifiable although it is not necessary that he be
named; It is not sufficient that the offended party recognized
himself as the person attacked or defamed, but it must be shown
that at least a third person could identify him as the object of the
libelous publication.—In order to maintain a libel suit, it is essential
that the victim be identifiable although it is not necessary that he be
named. It is also not sufficient that the offended party recognized
himself as the person attacked or defamed, but it must be shown that
at least a third person could identify him as the object of the libelous
publication. Regrettably, these requisites have not been complied
with in the case at bar.
________________
* SECOND DIVISION.
2
2 SUPREME COURT REPORTS ANNOTATED 
Borjal vs. Court of Appeals
Same; Same; Identification is grossly inadequate when even the
alleged offended party is himself unsure that he was the object of
the verbal attack.—Identification is grossly inadequate when even
the alleged offended party is himself unsure that he was the object of
the verbal attack. It is well to note that the revelation of the identity
of the person alluded to came not from petitioner Borjal but from
private respondent himself when he supplied the information
through his 4 June 1989 letter to the editor. Had private respondent
not revealed that he was the “organizer” of the FNCLT referred to in
the Borjal articles, the public would have remained in blissful
ignorance of his identity. It is therefore clear that on the element of
identifiability alone the case falls.
Same; Same; Privileged Communications; Words and
Phrases; Absolutely privileged communications are those which are
not actionable even if the author has acted in bad faith while
qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made
without good intention or justifiable motive.—A privileged
communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which
are not actionable even if the author has acted in bad faith. An
example is found in Sec. 11, Art. VI, of the 1987 Constitution which
exempts a member of Congress from liability for any speech or
debate in the Congress or in any Committee thereof. Upon the other
hand, qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre belong
“private communications” and “fair and true report without any
comments or remarks.”
Same; Same; Same; Constitutional Law; Freedom of
Expression; Criminal Law; The enumeration under Article 354 of
63
the Revised Penal Code is not an exclusive list of qualifiedly
privileged communications since fair commentaries on matters of
public interest are likewise privileged; The rule on privileged
communications had its genesis not in the nation’s penal code but in
the Bill of Rights of the Constitution guaranteeing freedom of
speech and of the press, and this constitutional right cannot be
abolished by the mere failure of the legislature to give it express
recognition in the statute punishing libels.—Indisputably, petitioner
Borjal’s questioned writings are not within the exceptions of Art. 354
of The Revised Penal Code for, as correctly observed by the appellate
court, they are neither private
3 and political culture.—The doctrine formulated in these two (2) cases
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
communications nor fair and true report without any comments or
remarks. However this does not necessarily mean that they are not
privileged. To be sure, the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged.
The rule on privileged communications had its genesis not in the
nation’s penal code but in the Bill of Rights of the Constitution
guaranteeing freedom of speech and of the press. As early as 1918,
in United States v. Cañete, this Court ruled that publications which
are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech. This constitutional
right cannot be abolished by the mere failure of the legislature to give
it express recognition in the statute punishing libels.
Same; Same; Same; Same; Same; The concept of privileged
communications is implicit in the freedom of the press.—The
concept of privileged communications is implicit in the freedom of
the press. As held in Elizalde v. Gutierrez and reiterated in Santos v.
Court of Appeals—To be more specific, no culpability could be
imputed to petitioners for the alleged offending publication without
doing violence to the concept of privileged communications implicit
in the freedom of the press. As was so well put by Justice Malcolm
in Bustos: ‘Public policy, the welfare of society, and the orderly
administration of government have demanded protection of public
opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege.’
Same; Same; Same; Same; Same; Privileged communications
must, sui generis, be protective of public opinion, which closely
adheres to the democratic theory of free speech as essential to
collective self-determination and eschews the strictly libertarian
view that it is protective solely of self-expression which makes its
appeal to the individualistic ethos that so dominates our popular
resonates the rule that privileged communications must, sui generis,
be protective of public opinion. This closely adheres to the
democratic theory of free speech as essential to collective self-
determination and eschews the strictly libertarian view that it is
protective solely of self-expression which, in the words of Yale
Sterling Professor Owen Fiss, makes its appeal to the individualistic
ethos that so dominates our popular and political culture. It is
therefore clear that the restrictive interpretation vested by the Court
of Appeals on the penal provision 
4
4 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
exempting from liability only private communications and fair and
true report without comments or remarks defeats, rather than
promotes, the objective of the rule on privileged communications,
sadly contriving as it does, to suppress the healthy efflorescence of
public debate and opinion as shining linchpins of truly democratic
societies.
Same; Same; Same; Same; Same; Public Officers; In order that a
discreditable imputation to a public official may be actionable, it
must either be a false allegation of fact or a comment based on a
64
false supposition—if the comment is an expression of opinion, based
on established facts, then it is immaterial that the opinion happens
to be mistaken, as long as it might reasonably be inferred from the
facts.— To reiterate, fair commentaries on matters of public interest
are privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in general
every discreditable imputation publicly made is deemed false,
because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable.
In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might reasonably be
inferred from the facts.
Same; Same; Same; Same; Same; An organization aiming to
reinvent and reshape the transportation laws of the country and
seeking to source its funds for the project from the public at large
cannot dissociate itself from the public character of its mission.—
The declared objective of the conference, the composition of its
members and participants, and the manner by which it was intended
to be funded no doubt lend to its activities as being genuinely imbued
with public interest. An organization such as the FNCLT aiming to
reinvent and reshape the transportation laws of the country and
seeking to source its funds for the project from the public at large
cannot dissociate itself from the public character of its mission. As
such, it cannot but invite close scrutiny by the media obliged to
inform the public of the legitimacy of the purpose of the activity and
of the qualifications and integrity of the personalities behind it.
5 is involved or because in some sense the individual did not
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
Same; Same; Same; Same; Same; Words and Phrases; “Public
figure” is a person who, by his accomplishments, fame, mode of
living, or by adopting a profession or calling which gives the public
a legitimate interest in his doings, his affairs and his character, has
become a public personage—in other words, a celebrity.—In the
present case, we deem private respondent a public figure within the
purview of the New York Times ruling. At any rate, we have also
defined “public figure” in Ayers Production Pty., Ltd. v. Capulong as
—x x x x a person who, by his accomplishments, fame, mode of living,
or by adopt-ing a profession or calling which gives the public a
legitimate interest in his doings, his affairs and his character, has
become a ‘public personage.’ He is, in other words, a celebrity.
Obviously, to be included in this category are those who have
achieved some degree of reputation by appearing before the public,
as in the case of an actor, a professional baseball player, a pugilist, or
any other entertainer. The list is, however, broader than this. It
includes public officers, famous inventors and explorers, war heroes
and even ordinary soldiers, infant prodigy, and no less a personage
than the Great Exalted Ruler of the lodge. It includes, in short,
anyone who has arrived at a position where the public attention is
focused upon him as a person.
Same; Same; Same; Same; Same; If a matter is a subject of public
or general interest, it cannot suddenly become less so merely
because a private individual is involved or because in some sense
the individual did not voluntarily choose to become involved.—But
even assuming ex-gratia argumenti that private respondent, despite
the position he occupied in the FNCLT, would not qualify as a public
figure, it does not necessarily follow that he could not validly be the
subject of a public comment even if he was not a public official or at
least a public figure, for he could be, as long as he was involved in a
public issue. If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a private individual
voluntarily choose to become involved. The public’s primary interest
is in the event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not the
participant’s prior anonymity or notoriety.
65
Same; Same; Same; Same; Same; Malice; Presumptions of
Malice; While, generally, malice can be presumed from defamatory
words, the privileged character of a communication destroys the
presumption
6 inaccuracy or even falsity alone does not prove actual malice. Errors
6 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
of malice.—The Court of Appeals concluded that since malice is
always presumed in the publication of defamatory matters in the
absence of proof to the contrary, the question of privilege is
immaterial. We reject this postulate. While, generally, malice can be
presumed from defamatory words, the privileged character of a
communication destroys the presumption of malice. The onus of
proving actual malice then lies on plaintiff, private respondent
Wenceslao herein. He must bring home to the defendant, petitioner
Borjal herein, the existence of malice as the true motive of his
conduct.
Same; Same; Same; Same; Same; Same; Words and
Phrases; “Malice,” Explained.—Malice connotes ill will or spite and
speaks not in response to duty but merely to injure the reputation of
the person defamed, and implies an intention to do ulterior and
unjustifiable harm. Malice is bad faith or bad motive. It is the essence
of the crime of libel.
Same; Same; Same; Same; Same; Same; Same; “Reckless
disregard of what is false or not” means that the defendant
entertains serious doubt as to the truth of the publication, or that he
possesses a high degree of awareness of their probable falsity.—To
be considered malicious, the libelous statements must be shown to
have been written or published with the knowledge that they are false
or in reckless disregard of whether they are false or not. “Reckless
disregard of what is false or not” means that the defendant entertains
serious doubt as to the truth of the publication, or that he possesses a
high degree of awareness of their probable falsity.
Same; Same; Same; Same; Same; Same; Even assuming that the
contents of the articles are false, mere error, inaccuracy or even
falsity alone does not prove actual malice—there must be some
room for misstatement of fact as well as for misjudgment.—Even
assuming that the contents of the articles are false, mere error,
or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable
care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well
as for misjudgment. Only by giving them much leeway and tolerance
can they courageously and effectively function as critical agencies in
our democracy. In Bulletin Publishing Corp. v. Noel we held—A
newspaper especially 
7
VOL. 301, JANUARY 14, 1999 7
Borjal vs. Court of Appeals
one national in reach and coverage, should be free to report on
events and developments in which the public has a legitimate interest
with minimum fear of being hauled to court by one group or another
on criminal or civil charges for libel, so long as the newspaper
respects and keeps within the standards of morality and civility
prevailing within the general community.
Same; Same; Same; Same; Same; To avoid the self-censorship
that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are
required to allow an adequate margin of error by protecting some
inaccuracies.—To avoid the self-censorship that would necessarily
accompany strict liability for erroneous statements, rules governing
liability for injury to reputation are required to allow an adequate
margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for
defamation of a public official or public figure may not be imposed in
66
the absence of proof of “actual malice” on the part of the person
making the libelous statement.
Same; Same; Same; Same; Same; Complete liberty to comment on
the conduct of public men is a scalpel in the case of free speech.— At
any rate, it may be salutary for private respondent to ponder upon
the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos, that
“the interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound may be assuaged by the balm of a clear
conscience. A public official must not be too thin-skinned with
reference to comments upon his official acts.”
Same; Same; Same; Same; Same; The Court takes this
opportunity to remind media practitioners of the high ethical
standards attached to and demanded by their noble profession—
without a lively sense of responsibility, a free press may readily
become a powerful instrument of injustice.—We must however take
this opportunity to likewise remind media practitioners of the high
ethical standards attached to and demanded by their noble
profession. The danger of an unbridled irrational exercise of the right
of free speech and press, that is, in utter contempt of the rights of
others and in willful disre-
8 sustain any award. Indeed, private respondent cannot be said to have
8 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
gard of the cumbrous responsibilities inherent in it, is the eventual
self-destruction of the right and the regression of human society into
a veritable Hobbesian state of nature where life is short, nasty and
brutish. Therefore, to recognize that there can be no absolute
“unrestraint” in speech is to truly comprehend the quintessence of
freedom in the marketplace of social thought and action, genuine
freedom being that which is limned by the freedom of others. If there
is freedom of the press, ought there not also be freedom from the
press? It is in this sense that self-regulation as distinguished
from self-censorship becomes the ideal mean for, as Mr. Justice
Frankfurter has warned, “[W]ithout x x x a lively sense of
responsibility, a free press may readily become a powerful
instrument of injustice.”
Same; Same; Same; Same; Same; It is also worth keeping in mind
that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an unrestricted hunting license to
prey on the ordinary citizen.—Lest we be misconstrued, this is not to
diminish nor constrict that space in which expression freely
flourishes and operates. For we have always strongly maintained, as
we do now, that freedom of expression is man’s birthright—
constitutionally protected and guaranteed, and that it has become
the singular role of the press to act as its “defensor fidei” in a
democratic society such as ours. But it is also worth keeping in mind
that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an unrestricted hunting license to
prey on the ordinary citizen.
Same; Same; Same; Same; Same; Damages; Proof and motive
that the institution of the action was prompted by a sinister design
to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages.—On petitioners’
counterclaim for damages, we find the evidence too meager to
instituted the present suit in abuse of the legal processes and with
hostility to the press; or that he acted maliciously, wantonly,
oppressively, fraudulently and for the sole purpose of harassing
petitioners, thereby entitling the latter to damages. On the contrary,
private respondent acted within his rights to protect his honor from
what he perceived to be malicious imputations against him. Proof
and motive that the institution of the action was prompted by a
sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law
could not have 
9
67

VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
meant to impose a penalty on the right to litigate, nor should
counsel’s fees be awarded every time a party wins a suit.
Same; Same; Same; Same; Same; It is the brightest jewel in the
crown of the law to speak and maintain the golden mean between
defamation, on one hand, and a healthy and robust right of free
public discussion, on the other.—For, concluding with the wisdom
in Warren v. Pulitzer Publishing Co.—Every man has a right to
discuss matters of public interest. A clergyman with his flock, an
admiral with his fleet, a general with his army, a judge with his jury,
we are, all of us, the subject of public discussion. The view of our
court has been thus stated: ‘It is only in despotisms that one must
speak sub rosa, or in whispers, with bated breath, around the corner,
or in the dark on a subject touching the common welfare. It is the
brightest jewel in the crown of the law to speak and maintain the
golden mean between defamation, on one hand, and a healthy and
robust right of free public discussion, on the other.’
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
     Angara, Abello, Concepcion, Regala & Cruz for petitioners.
     Cenon C. Sorreta for private respondent.
“The question is not so much as who was aimed at  the spectrum in defense of the constitutionally protected status of
as who was hit.” (Pound, J., in Corrigan v. Bobbs-Merill Co.,  unpopular opinion in free society.
228 N.Y. 58 [1920]).
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the
most basic yet oft hotly contested freedoms of man, the issue of the
right of free expression bestirs and presents itself time and again, in
cyclic occurrence, to inveigle, nay, challenge the courts to re-survey
its ever shifting terrain, explore and furrow its heretofore uncharted
moors and val-
10
10 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
leys and finally redefine the metes and bounds of its controversial
domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man
undergone radical doctrinal metamorphoses than his right to freely
and openly express his views. Blackstone’s pontifical comment that
“where blasphemous, immoral, treasonable, schismatical, seditious,
or scandalous libels are punished by English law . . . the liberty of the
press, properly understood, is by no means infringed or violated,”
found kindred expression in the landmark opinion of England’s Star
Chamber in the Libelis Famosis case in 1603.1 That case established
two major propositions in the prosecution of defamatory remarks:
first, that libel against a public person is a greater offense than one
directed against an ordinary man, and second, that it is immaterial
that the libel be true.
Until republicanism caught fire in early America, the view from the
top on libel was no less dismal. Even the venerable Justice Holmes
appeared to waffle as he swayed from the concept of criminal libel
liability under the clear and present danger rule, to the other end of
Viewed in modern times and the current revolution in information
and communication technology, libel principles formulated at one
time or another have waxed and waned through the years in the
68
constant ebb and flow of judicial review. At the very least, these
principles have lost much of their flavor, drowned and swamped as
they have been by the ceaseless cacophony and din of thought and
discourse emanating from just about every source and direction,
aided no less by an increasingly powerful and irrepressible mass
media. Public discourse, laments Knight, has been devalued by its
utter commonality; and we agree, for its logical effect is to benumb
thought and sensibility on what may be considered as criminal
illegitimate encroachments on the right of persons to
_______________
1 Alfred H. Knight, The Life of the Law, Crown Publishers, Inc., New
York, 1996, pp. 102, 230 and 231.
11
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
enjoy a good, honorable and reputable name. This may explain the
imperceptible demise of criminal prosecutions for libel and the trend
to rely instead on indemnity suits to repair any damage on one’s
reputation.
In this petition for review, we are asked to reverse the Court of
Appeals in “Francisco Wenceslao v. Arturo Borjal and Maximo
Soliven,” CA-G.R. No. 40496, holding on 25 March 1996 that
petitioners Arturo Borjal and Maximo Soliven are solidarily liable for
damages for writing and publishing certain articles claimed to be
derogatory and offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the
incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily,
Inc., owner of The Philippine Star, a daily newspaper. At the time the
complaint was filed, petitioner Borjal was its President while Soliven
was (and still is) Publisher and Chairman of its Editorial Board.
Among the regular writers of The Philippine Star is Borjal who runs
the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil
engineer, businessman, business consultant and journalist by
profession. In 1988 he served as a technical adviser of Congressman
Fabian Sison, then Chairman of the House of Representatives Sub-
Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime
in September 1988 undertaken by the House SubCommittee on
Industrial Policy, those who attended agreed to organize the First
National Conference on Land Transportation (FNCLT) to be
participated in by the private sector in the transport industry and
government agencies concerned in order to find ways and means to
solve the transportation crisis. More importantly, the objective of the
FNCLT was to draft an omnibus bill that would embody a long-term
land transportation policy for presentation to Congress. The
11
conference which, according to private respondent, was estimated to
cost around P1,815,000.00 would be funded through solicitations
from various sponsors such as government agencies, 
12
12 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
private organizations, transport firms, and individual delegates or
participants.2
On 28 February 1989, at the organizational meeting of the FNCLT,
private respondent Francisco Wenceslao was elected Executive
Director. As such, he wrote numerous solicitation letters to the
business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner
Borjal was published on different dates in his column Jaywalker.
69
The articles dealt with the alleged anomalous activities of an
“organizer of a conference” without naming or identifying private
respondent. Neither did it refer to the FNCLT as the conference
therein mentioned. Quoted hereunder are excerpts from the articles
of petitioner together with the dates they were published3—
31 May 1989
Another self-proclaimed ‘hero’ of the EDSA Revolution goes around
organizing ‘seminars and conferences’ for a huge fee. This is a simple
ploy coated in jazzy letterheads and slick prose. The ‘hero’ has the
gall to solicit fees from anybody with bucks to spare. Recently, in his
usual straightforward style, Transportation Secretary Rainerio ‘Ray’
Reyes, asked that his name be stricken off from the letterheads the
‘hero’ has been using to implement one of his pet ‘seminars.’ Reyes
said: ‘I would like to reiterate my request that you delete my name.’
Note that Ray Reyes is an honest man who would confront anybody
eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its
unauthorized use of the names of President Aquino and Secretary
Ray Reyes. The conference program being circulated claims that
President Aquino and Reyes will be main speakers in the conference.
Yet, the word is that Cory and Reyes have not accepted the  A ‘conference organizer’ associated with shady deals seems to have a
_______________
2 Decision of the Court of Appeals in CA-G.R. No. 40496, Records,
pp. 114-116.
3 Id., pp. 144-149; Exhs. “A” to “G.”
13
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
invitation to appear in this confab. Ray Reyes even says that the
conference should be unmasked as a moneymaking gimmick.
19 June 1989
x x x some 3,000 fund solicitation letters were sent by the organizer
to every Tom, Dick and Harry and to almost all government agencies.
And the letterheads carried the names of Reyes and Periquet.
Agrarian Reform Secretary on leave Philip Juico received one, but he
decided to find out from Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put the fund solicitation
letter in the waste basket. Now, if the 3,000 persons and agencies
approached by the organizer shelled out 1,000 each, that’s easily P3
million to a project that seems so unsophisticated. But note that one
garment company gave P100,000, after which the Garments
Regulatory Board headed by Trade and Industry Undersecretary
Gloria Macapagal-Arroyo was approached by the organizer to
expedite the garment license application of the P100,000 donor.
21 June 1989
lot of trash tucked inside his closet. The Jaywalker continues to
receive information about the man’s dubious deals. His notoriety,
according to reliable sources, has reached the Premier Guest House
where his name is spoken like dung.
xxx
The first information says that the ‘organizer’ tried to mulct half a
million pesos from a garment producer and exporter who was being
investigated for violation of the rules of the Garments, Textile,
Embroidery and Apparel Board. The ‘organizer’ told the garment
13 exporter that the case could be fixed for a sum of P500,000.00. The
organizer got the shock of his life when the exporter told him: ‘If I
70
have that amount, I will hire the best lawyers, not you.’ The organizer
left in a huff, his thick face very pale.
xxx
Friends in government and the private sector have promised the
Jaywalker more ‘dope’ on the ‘organizer.’ It seems that he was not
only indiscreet; he even failed to cover his tracks. You will be hearing
more of the ‘organizer’s’ exploits from this corner soon.
14
14 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
22 June 1989
The scheming ‘organizer’ we have been writing about seems to have
been spreading his wings too far. A congressional source has
informed the Jaywalker that the schemer once worked for a
congressman from the North as some sort of a consultant on
economic affairs. The first thing the “organizer” did was to initiate
hearings and round-the-table discussions with people from the
business, export and—his favorite—the garments sector.
xxx
The ‘organizer’s’ principal gamely went along, thinking that his
‘consultant’ had nothing but the good of these sectors in mind. It was
only later that he realized that the ‘consultant’ was acting with a
burst of energy ‘in aid of extortion.’ The ‘consultant’ was fired.
xxx
There seems to be no end to what a man could do to pursue his
dubious ways. He has tried to operate under a guise of a well-
meaning reformist. He has intellectual pretensions—and sometimes
he succeeds in getting his thoughts in the inside pages of some
newspapers, with the aid of some naïve newspaper people. He has
been turning out a lot of funny-looking advice on investments, export
growth, and the like.
xxx
A cabinet secretary has one big wish. He is hoping for a broad power
to ban crooks and influence-peddlers from entering the premises of
his department. But the Cabinet man might not get his wish. There is
one ‘organizer’ who, even if physically banned, can still concoct ways
of doing his thing. Without a tinge of remorse, the ‘organizer’ could
fill up his letterheads with names of Cabinet members, congressmen,
and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The
attendance was very poor and the few who participated in the affair
were mostly leaders of jeepney drivers’ groups. None of the
government officials involved in regulating public transportation was
there. The big names in the industry also did not participate. With
such a poor attendance, one wonders why the conference organizers
went ahead with the affair and tried so hard to convince 3,000
companies and individuals to contribute to the affair.
15
VOL. 301, JANUARY 14, 1999 15
Borjal vs. Court of Appeals
xxx
The conference was doomed from the start. It was bound to fail. The
personalities who count in the field of transportation refused to
attend the affair or withdrew their support after finding out the
71
background of the organizer of the conference. How could a
conference on transportation succeed without the participation of the
big names in the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The
Philippine Starinsisting that he was the “organizer” alluded to in
petitioner Borjal’s columns.4 In a subsequent letter to The Philippine
Star, private respondent refuted the matters contained in petitioner
Borjal’s columns and openly challenged him in this manner—
To test if Borjal has the guts to back up his holier than thou attitude,
I am prepared to relinquish this position in case it is found that I
have misappropriated even one peso of FNCLT money. On the other
hand, if I can prove that Borjal has used his column as a ‘hammer’ to
get clients for his PR Firm, AA Borjal Associates, he should resign
from the STAR and never again write a column. Is it a deal?5
Thereafter, private respondent filed a complaint with the National
Press Club (NPC) against petitioner Borjal for unethical conduct. He
accused petitioner Borjal of using his column as a form of leverage to
obtain contracts for his public relations firm, AA Borjal
Associates.6 In turn, petitioner Borjal published a rejoinder to the
challenge of private respondent not only to protect his name and
honor but also to refute the claim that he was using his column for
character assassination.7
________________
4 Published in the 4 June 1989 issue of The Philippine Star; see Exh.
“R.”
5 TSN, 18 May 1992, p. 43; Exh. “1.”
6 Id., pp. 60-64; Exh. “21.”
7 Exh. “16.”
16
16 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
Apparently not satisfied with his complaint with the NPC, private
respondent filed a criminal case for libel against petitioners Borjal
and Soliven, among others. However, in a Resolution dated 7 August
1990, the Assistant Prosecutor handling the case dismissed the
complaint for insufficiency of evidence. The dismissal was sustained
by the Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners
a civil action for damages based on libel subject of the instant
case.8 In their answer, petitioners interposed compulsory
counterclaims for actual, moral and exemplary damages, plus
attorney’s fees and costs. After due consideration, the trial court
decided in favor of private respondent Wenceslao and ordered
petitioners Borjal and Soliven to indemnify private respondent
P1,000,000.00 for actual and compensatory damages, in addition to
P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorney’s fees, and to pay the costs of
suit.
The Court of Appeals affirmed the decision of the court a quo but
reduced the amount of the monetary award to P110,000.00 actual
damages, P200,000.00 moral damages and P75,000.00 attorney’s
fees plus costs. In a 20-page Decision promulgated 25 March 1996,
the appellate court ruled inter alia that private respondent was
sufficiently identifiable, although not named, in the questioned
articles; that private respondent was in fact defamed by petitioner
Borjal by describing him variously as a “self-proclaimed hero,” “a
conference organizer associated with shady deals who has a lot of
trash tucked inside his closet,” “thick face,” and “a person with
dubious ways”; that petitioner’s claim of privileged communication
was unavailing since the privileged character of the articles was lost
by their publication in a newspaper of general circulation; that
petitioner could have performed his office as a newspaperman
72
without necessarily transgressing the rights of Wenceslao by calling
the attention of the gov-
________________
8 Docketed as Civil Case No. Q-90-7058, raffled to RTC-Br. 98,
Quezon City.
17
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
ernment offices concerned to examine the authority by which
Wenceslao acted, warning the public against contributing to a
conference that, according to his perception, lacked the univocal
indorsement of the responsible government officials, or simply
informing the public of the letters Wenceslao wrote and the favors he
requested or demanded; and, that when he imputed dishonesty,
falsehood and misrepresentation, shamelessness and intellectual
pretensions to Wenceslao, petitioner Borjal crossed the thin but clear
line that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of
the appellate court’s decision which reduced the amount of damages
awarded him by filing with this Court a Petition for Extension of
Time to File Petition and a Motion for Suspension of Time to File
Petition.9 However, in a Resolution dated 27 May 1996, the Second
Division denied both motions: the first, for being premature, and the
second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and
transferred the present case to the Second Division, there was no
longer any case thereat with which to consolidate this case since G.R.
No. 124396 had already been disposed of by the Second Division
almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the
Court of Appeals denied the motion in its Resolution of 12 September
1996. Hence the instant petition for review. The petitioners contend
that the Court of Appeals erred: (a) in ruling that private respondent
Wenceslao was sufficiently identified by petitioner Borjal in the
questioned articles; (b) in refusing to accord serious consideration to
the findings of the Department of Justice and the Office of the
President that private respondent Wenceslao was not sufficiently
identified in the questioned articles, this notwithstanding that the
degree of proof required in a preliminary investigation is
merely prima facie evidence which is significantly less than the pre-
17
_______________
9 Wenceslao v. Court of Appeals, G.R. No. 124396.
18
18 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
ponderance of evidence required in civil cases; (c) in ruling that the
subject articles do not constitute qualifiedly privileged
communication; (d) in refusing to apply the “public official doctrine”
laid down in New York Times v. Sullivan; (e) in ruling that the
questioned articles lost their privileged character because of their
publication in a newspaper of general circulation; (f) in ruling that
private respondent has a valid cause of action for libel against
petitioners although he failed to prove actual malice on their part,
and that the prosecutors of the City of Manila, the Department of
Justice, and eventually, the Office of the President, had already
resolved that there was no sufficient evidence to prove the existence
of libel; and, (g) assuming arguendo that Borjal should be held
liable, in adjudging petitioner Soliven solidarily liable with him.
Thus, petitioners pray for the reversal of the appellate court’s ruling,
the dismissal of the complaint against them for lack of merit, and the
award of damages on their counterclaim.
73
The petition is impressed with merit. In order to maintain a libel suit,
it is essential that the victim be identifiable although it is not
necessary that he be named. It is also not sufficient that the offended
party recognized himself as the person attacked or defamed, but it
must be shown that at least a third person could identify him as the
object of the libelous publication.10 Regrettably, these requisites
have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that
Borjal’s column writings sufficiently identified Wenceslao as the
“conference organizer.” It cited the First National Conference on
Land Transportation, the letterheads used listing different telephone
numbers, the donation of P100,000.00 from Juliano Lim and the
reference to the “organizer of the conference”—the very same
appellation employed in all the column items—as having sufficiently
established the identity of private respondent Wenceslao for
_______________
10 Kunkle v. Cablenews-American, 42 Phil. 757 (1922). See
also Corpus v. Cuaderno, Sr., No. L-16969, 30 April 1966, 16 SCRA
807; People v. Monton, No. L-16772, 30 November 1962, 6 SCRA
801.
19
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
those who knew about the FNCLT who were present at its inception,
and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the
evidence at hand. The questioned articles written by Borjal do not
identify private respondent Wenceslao as the organizer of the
conference. The first of the Jaywalker articles which appeared in the
31 May 1989 issue of The Philippine Star yielded nothing to indicate
that private respondent was the person referred to therein. Surely, as
observed by petitioners, there were millions of “heroes” of the EDSA
Revolution and anyone of them could be “self-proclaimed” or an
“organizer of seminars and conferences.” As a matter of fact, in his 9
June 1989 column petitioner Borjal wrote about the “so-called First
National Conference on Land Transportation whose principal
organizers are not specified” (italics supplied).11 Neither did the
FNCLT letterheads12 disclose the identity of the conference
organizer since these contained only an enumeration of names where
private respondent Francisco Wenceslao was described as Executive
Director and Spokesman and not as a conference organizer.13 The
printout14 and tentative program15of the conference were devoid of
any indication of Wenceslao as organizer. The printout which
contained an article entitled “Who Organized the NCLT?” did not
even mention private respondent’s name, while the tentative
program only denominated private respondent as “Vice Chairman
and Executive Director,” and not as organizer.
No less than private respondent himself admitted that the FNCLT
had severalorganizers and that he was only a part of the
organization, thus—
I would like to clarify for the record that I was only a part of the
organization. I was invited then because I was the head of the 
_________________
19
11 Exh. “B.”
12 Exh. “8”; Annexes “3” and “5.”
13 Exh. “SSS-1.”
14 Annex “C,” Complaint.
15 Annex “B,” id.
20
74

20 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
technical panel of the House of Representatives Sub-Committee on
Industrial Policy that took care of congressional hearings.16
Significantly, private respondent himself entertained doubt that he
was the person spoken of in Borjal’s columns. The former even called
up columnist Borjal to inquire if he (Wenceslao) was the one referred
to in the subject articles.17 His letter to the editor published in the 4
June 1989 issue of The Philippine Star even showed private
respondent Wenceslao’s uncertainty—
Although he used a subterfuge, I was almost certain that Art Borjal
referred to the First National Conference on Land Transportation
(June 29-30) and me in the second paragraph of his May 31 column x
x x18
Identification is grossly inadequate when even the alleged offended
party is himself unsure that he was the object of the verbal attack. It
is well to note that the revelation of the identity of the person alluded
to came not from petitioner Borjal but from private respondent
himself when he supplied the information through his 4 June 1989
letter to the editor. Had private respondent not revealed that he was
the “organizer” of the FNCLT referred to in the Borjal articles, the
public would have remained in blissful ignorance of his identity. It is
therefore clear that on the element of identifiability alone the case
falls.
The above disquisitions notwithstanding, and on the
assumption arguendo that private respondent has been sufficiently
identified as the subject of Borjal’s disputed comments, we now
proceed to resolve the other issues and pass upon the pertinent
findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around
the primary question of whether the disputed articles
_______________
16 TSN, 9 September 1991, p. 5.
17 Id., 18 May 1992, p. 20.
18 Annex “R.”
21
VOL. 301, JANUARY 14, 1999 21
Borjal vs. Court of Appeals
constitute privileged communications as to exempt the author from
liability.
The trial court ruled that petitioner Borjal cannot hide behind the
proposition that his articles are privileged in character under the
provisions of Art. 354 of The Revised Penal Code which state—
Art. 354. Requirement for publicity.—Every defamatory imputation
is presumed to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown, except in the following
cases:
1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.
75
Respondent court explained that the writings in question did not fall
under any of the exceptions described in the above-quoted article
since these were neither “private communications” nor “fair and true
report x x x without any comments or remarks.” But this is incorrect.
A privileged communication may be either absolutely privileged or
qualifiedly privileged. Absolutely privileged communications are
those which are not actionable even if the author has acted in bad
faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution
which exempts a member of Congress from liability for any speech or
debate in the Congress or in any Committee thereof. Upon the other
hand, qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre belong
“private communications” and “fair and true report without any
comments or remarks.”
Indisputably, petitioner Borjal’s questioned writings are not within
the exceptions of Art. 354 of The Revised Penal
22
22 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
Code for, as correctly observed by the appellate court, they are
neither private communications nor fair and true report without
any comments or remarks. However this does not necessarily mean
that they are not privileged. To be sure, the enumeration under Art.
354 is not an exclusive list of qualifiedly privileged communications
since fair commentaries on matters of public interest are likewise
privileged. The rule on privileged communications had its genesis
not in the nation’s penal code but in the Bill of Rights of the
Constitution guaranteeing freedom of speech and of the press.19 As
early as 1918, in United States v. Cañete,20 this Court ruled that
publications which are privileged for reasons of public policy are
protected by the constitutional guaranty of freedom of speech. This
constitutional right cannot be abolished by the mere failure of the
legislature to give it express recognition in the statute punishing
libels.
The concept of privileged communications is implicit in the freedom
of the press. As held in Elizalde v. Gutierrez 21 and reiterated
in Santos v. Court of Appeals 22—
To be more specific, no culpability could be imputed to petitioners
for the alleged offending publication without doing violence to the
concept of privileged communications implicit in the freedom of the
press. As was so well put by Justice Malcolm in Bustos: ‘Public
policy, the welfare of society, and the orderly administration of
government have demanded protection of public opinion. The
inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.’
The doctrine formulated in these two (2) cases resonates the rule that
privileged communications must, sui generis, be 
________________
19 Art. III, Sec. 4, provides: No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the right of the
people to peaceably assemble and petition the government for
redress of grievances.
20 38 Phil. 253, 265 (1918).
21 No. L-33615, 22 April 1977, 76 SCRA 448, 454.
22 G.R. No. 45031, 21 October 1991, 203 SCRA 110, 117.
23
VOL. 301, JANUARY 14, 1999 23
Borjal vs. Court of Appeals
76
protective of public opinion. This closely adheres to the democratic
theory of free speech as essential to collective self-determination and
eschews the strictly libertarian view that it is protective solely of self-
expression which, in the words of Yale Sterling Professor Owen
Fiss,23 makes its appeal to the individualistic ethos that so
dominates our popular and political culture. It is therefore clear that
the restrictive interpretation vested by the Court of Appeals on the
penal provision exempting from liability only private
communications and fair and true report without comments or
remarks defeats, rather than promotes, the objective of the rule on
privileged communications, sadly contriving as it does, to suppress
the healthy efflorescence of public debate and opinion as shining
linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in general
every discreditable imputation publicly made is deemed false,
because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily actionable.
In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might reasonably be
inferred from the facts.24
There is no denying that the questioned articles dealt with matters of
public interest. In his testimony, private respondent spelled out the
objectives of the conference thus—
_________________
23 Author of “The Irony of Free Speech,” Harvard University Press,
Cambridge, Massachusetts, 1996.
24 People v. Velasco, 40 O.G., No. 18, p. 3694.
24
24 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
x x x x The principal conference objective is to come up with a draft
of an Omnibus Bill that will embody a long term land transportation
policy for presentation to Congress in its next regular session in July.
Since last January, the National Conference on Land Transportation
(NCLT), the conference secretariat, has been enlisting support from
all sectors to ensure the success of the project.25
Private respondent likewise testified that the FNCLT was raising
funds through solicitation from the public—
Q:Now, in this first letter, you have attached a budget and it says here that
in this seminar of the First National Conference on Land
Transportation, you will need around One million eight hundred fifteen
thousand pesos, is that right?
A:That was the budget estimate, sir.
Q:How do you intend as executive officer, to raise this fund of your
seminar?
A:Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants.26
The declared objective of the conference, the composition of its
members and participants, and the manner by which it was intended
to be funded no doubt lend to its activities as being genuinely imbued
with public interest. An organization such as the FNCLT aiming to
reinvent and reshape the transportation laws of the country and
seeking to source its funds for the project from the public at large
cannot dissociate itself from the public character of its mission. As
such, it cannot but invite close scrutiny by the media obliged to
77
inform the public of the legitimacy of the purpose of the activity and
of the qualifications and integrity of the personalities behind it.
________________
25 TSN, 29 July 1991, p. 15.
26 Id., 9 September 1991, pp. 11-12.
25
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
This in effect is the strong message in New York Times v.
Sullivan 27 which the appellate court failed to consider or, for that
matter, to heed. It insisted that private respondent was not, properly
speaking, a “public official” nor a “public figure,” which is why the
defamatory imputations against him had nothing to do with his task
of organizing the FNCLT.
New York Times v. Sullivan was decided by the U.S. Supreme Court
in the 1960s at the height of the bloody rioting in the American South
over racial segregation. The then City Commissioner L.B. Sullivan of
Montgomery, Alabama, sued New York Timesfor publishing a paid
political advertisement espousing racial equality and describing
police atrocities committed against students inside a college campus.
As commissioner having charge over police actions Sullivan felt that
he was sufficiently identified in the ad as the perpetrator of the
outrage; consequently, he sued New York Times on the basis of what
he believed were libelous utterances against him.
The U.S. Supreme Court speaking through Mr. Justice William J.
Brennan, Jr. ruled against Sullivan holding that honest criticisms on
the conduct of public officials and public figures are insulated from
libel judgments. The guarantees of freedom of speech and press
prohibit a public official or public figure from recovering damages for
a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice, i.e., with
knowledge that it was false or with reckless disregard of whether it
was false or not.
The raison d’etre for the New York Times doctrine was that to
require critics of official conduct to guarantee the truth of all their
factual assertions on pain of libel judgments would lead to self-
censorship, since would-be critics would be deterred from voicing
out their criticisms even if such were believed to be true, or were in
fact true, because of doubt 
25 _________________
27 376 US 254.
26
26 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
whether it could be proved or because of fear of the expense of
having to prove it.28
In the present case, we deem private respondent a public figure
within the purview of the New York Times ruling. At any rate, we
have also defined “public figure” in Ayers Production Pty., Ltd. v.
Capulong 29 as—
x x x x a person who, by his accomplishments, fame, mode of living,
or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs and his character, has
become a ‘public personage.’ He is, in other words, a celebrity.
Obviously, to be included in this category are those who have
achieved some degree of reputation by appearing before the public,
as in the case of an actor, a professional baseball player, a pugilist, or
any other entertainer. The list is, however, broader than this. It
78
includes public officers, famous inventors and explorers, war heroes
and even ordinary soldiers, infant prodigy, and no less a personage
than the Great Exalted Ruler of the lodge. It includes, in short,
anyone who has arrived at a position where the public attention is
focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was
promoted as a joint project of the government and the private sector,
and organized by top government officials and prominent
businessmen. For this reason, it attracted media mileage and drew
public attention not only to the conference itself but to the
personalities behind as well. As its Executive Director and
spokesman, private respondent consequently assumed the status of a
public figure.
But even assuming ex-gratia argumenti that private respondent,
despite the position he occupied in the FNCLT, would not qualify as a
public figure, it does not necessarily follow that he could not validly
be the subject of a public comment even if he was not a public official
or at least a public figure, for he could be, as long as he was involved
in a public issue. If a matter is a subject of public or general interest,  speech in this jurisdiction. But no matter how intemperate or
________________
28 NAACP v. Button, 371 US 415.
29 G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861.
27
VOL. 301, JANUARY 14, 1999
Borjal vs. Court of Appeals
it cannot suddenly become less so merely because a private
individual is involved or because in some sense the individual did not
voluntarily choose to become involved. The public’s primary interest
is in the event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not the
participant’s prior anonymity or notoriety.30
There is no denying that the questioned articles dealt with matters of
public interest. A reading of the imputations of petitioner Borjal
against respondent Wenceslao shows that all these necessarily bore
upon the latter’s official conduct and his moral and mental fitness as
Executive Director of the FNCLT. The nature and functions of his
position which included solicitation of funds, dissemination of
information about the FNCLT in order to generate interest in the
conference, and the management and coordination of the various
activities of the conference demanded from him utmost honesty,
integrity and competence. These are matters about which the public
has the right to be informed, taking into account the very public
character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the
language employed describing the “organizer of the conference.” One
is tempted to wonder if it was by some mischievous gambit that he
would also dare test the limits of the “wild blue yonder” of free
deprecatory the utterances appear to be, the privilege is not to be
defeated nor rendered inutile for, as succinctly expressed by Mr.
Justice Brennan in New York Times v. Sullivan, “[D]ebate on public
issues should be uninhibited, robust and wide open, and that it may
well include vehement, caustic and sometimes unpleasantly sharp
attacks on the government and public officials.”31
The Court of Appeals concluded that since malice is always presumed
in the publication of defamatory matters in the
27 _________________
30 Rosenbloom v. Metromedia, 403 US 296.
31 See Note 27; see also Terminiello v. Chicago, 337 US 1, 4, 93 L Ed
1131, 69 S. Ct. 894.
28
79

28 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
absence of proof to the contrary, the question of privilege is
immaterial.
We reject this postulate. While, generally, malice can be presumed
from defamatory words, the privileged character of a communication
destroys the presumption of malice.32 The onus of proving actual
malice then lies on plaintiff, private respondent Wenceslao herein.
He must bring home to the defendant, petitioner Borjal herein, the
existence of malice as the true motive of his conduct.33
Malice connotes ill will or spite and speaks not in response to duty
but merely to injure the reputation of the person defamed, and
implies an intention to do ulterior and unjustifiable harm.34 Malice
is bad faith or bad motive.35 It is the essence of the crime of libel.36
In the milieu obtaining, can it be reasonably inferred that in writing
and publishing the articles in question petitioner Borjal acted with
malice?
Primarily, private respondent failed to substantiate by preponderant
evidence that petitioner was animated by a desire to
inflict unjustifiable harm on his reputation, or that the articles were
written and published without good motives or justifiable ends. On
the other hand, we find petitioner Borjal to have acted in good faith.
Moved by a sense of civic duty and prodded by his responsibility as a
newspaperman, he proceeded to expose and denounce what he
perceived to be a public deception. Surely, we cannot begrudge him
for that. Every citizen has the right to enjoy a good name and
reputation, but we do not consider that petitioner Borjal has violated
that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements
must be shown to have been written or published
_______________
32 Lu Chu Sing v. Lu Tiong Gui, 76 Phil. 669 (1946).
33 See People v. Monton, 116 Phil. 1116 (1962).
34 See Note 20.
35 Potts v. Dies, 132 Fed 734, 735.
36 Rice v. Simmons, Del 2 Har. 309, 310.
29
VOL. 301, JANUARY 14, 1999 29
Borjal vs. Court of Appeals
with the knowledge that they are false or in reckless disregard of
whether they are false or not.37 “Reckless disregard of what is false
or not” means that the defendant entertains serious doubt as to the
truth of the publication,38 or that he possesses a high degree of
awareness of their probable falsity.39
The articles subject of the instant case can hardly be said to have
been written with knowledge that these are false or in reckless
disregard of what is false or not. This is not to say however that the
very serious allegations of petitioner Borjal assumed by private
respondent to be directed against him are true. But we nevertheless
find these at least to have been based on reasonable grounds formed
after the columnist conducted several personal interviews and after
considering the varied documentary evidence provided him by his
sources. Thus, the following are supported by documentary evidence:
(a) that private respondent requested Gloria Macapagal-Arroyo, then
head of the Garments and Textile Export Board (GTEB), to expedite
the processing and release of the import approval and certificate of
availability of a garment firm in exchange for the monetary
contribution of Juliano Lim, which necessitated a reply from the
80
office of Gloria Macapagal-Arroyo explaining the procedure of the
GTEB in processing applications and clarifying that all applicants
were treated equally;40 (b) that Antonio Periquet was designated
Chairman of the Executive Committee of the FNCLT notwithstanding
that he had previously declined the offer;41 and, (c) that despite the
fact that then President Aquino and her Secretary of Transportation
Rainerio Reyes declined the invitation to be guest speakers in the
conference, their names were still included in the printout of the
FNCLT.42 Added to these are the  can they courageously and effectively function as critical agencies in
__________________
37 See Note 27.
38 St. Amant v. Thompson, 390 US 731.
39 Garrison v. Louisiana, 379 US 74.
40 Exhs. “3” and “4.”
41 Exh. “5.”
42 Exhs. “6,” “7,” “8,” “9,” “10,” and “11.”
30
30 SUPREME COURT REPORTS ANNOTATED
Borjal vs. Court of Appeals
admissions of private respondent that: (a) he assisted Juliano Lim in
his application for a quota allocation with the GTEB in exchange for
monetary contributions to the FNCLT;43 (b) he included the name of
then Secretary of Transportation Rainerio Reyes in the
promotional materials of the conference notwithstanding the latter’s
refusal to lend his name to and participate in the FNCLT;44 and, (c)
he used different letterheads and telephone numbers.45
Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors
or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable
care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well
as for misjudgment. Only by giving them much leeway and tolerance
our democracy.46 In Bulletin Publishing Corp. v. Noel 47 we held—
A newspaper especially one national in reach and coverage, should be
free to report on events and developments in which the public has a
legitimate interest with minimum fear of being hauled to court by
one group or another on criminal or civil charges for libel, so long as
the newspaper respects and keeps within the standards of morality
and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict
liability for erroneous statements, rules governing liability for injury
to reputation are required to allow an adequate margin of error by
protecting some inaccuracies. It is
_________________
43 TSN, 30 September 1991, p. 14.
44 Id., 9 September 1991, p. 36.
45 Id., 30 September 1991, p. 14.
46 Concurring Opinion of US Supreme Court Justice Rutledge in
Pennekamp v. Florida, 328 US 331, 371-372.
47 G.R. No. 76565, 9 November 1988, 167 SCRA 255, 265.
31
81
 from self-censorship becomes the ideal mean for, as Mr. Justice
VOL. 301, JANUARY 14, 1999 31 Frankfurter has warned, “[W]ithout x x x a lively sense of 

___________________
Borjal vs. Court of Appeals
48 37 Phil. 731 (1918).
for the same reason that the New York Times doctrine requires that
liability for defamation of a public official or public figure may not be
imposed in the absence of proof of “actual malice” on the part of the 32
person making the libelous statement.
32 SUPREME COURT REPORTS ANNOTATED
At any rate, it may be salutary for private respondent to ponder upon
the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos,48 that Borjal vs. Court of Appeals
“the interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
responsibility, a free press may readily become a powerful
comment on the conduct of public men is a scalpel in the case of free
instrument of injustice.”49
speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound may be assuaged by the balm of a clear Lest we be misconstrued, this is not to diminish nor constrict that
conscience. A public official must not be too thin-skinned with space in which expression freely flourishes and operates. For we have
reference to comments upon his official acts.” always strongly maintained, as we do now, that freedom of
expression is man’s birthright—constitutionally protected and
guaranteed, and that it has become the singular role of the press to
The foregoing disposition renders the second and seventh assigned
act as its “defensor fidei” in a democratic society such as ours. But it
errors moot and academic, hence, we find no necessity to pass upon
is also worth keeping in mind that the press is the servant, not the
them.
master, of the citizenry, and its freedom does not carry with it an
unrestricted hunting license to prey on the ordinary citizen.50
We must however take this opportunity to likewise remind media
practitioners of the high ethical standards attached to and demanded
On petitioners’ counterclaim for damages, we find the evidence too
by their noble profession. The danger of an unbridled irrational
meager to sustain any award. Indeed, private respondent cannot be
exercise of the right of free speech and press, that is, in utter
said to have instituted the present suit in abuse of the legal processes
contempt of the rights of others and in willful disregard of the
and with hostility to the press; or that he acted maliciously,
cumbrous responsibilities inherent in it, is the eventual self-
wantonly, oppressively, fraudulently and for the sole purpose of
destruction of the right and the regression of human society into a
harassing petitioners, thereby entitling the latter to damages. On the
veritable Hobbesian state of nature where life is short, nasty and
contrary, private respondent acted within his rights to protect his
brutish. Therefore, to recognize that there can be no absolute
honor from what he perceived to be malicious imputations against
“unrestraint” in speech is to truly comprehend the quintessence of
him. Proof and motive that the institution of the action was
freedom in the marketplace of social thought and action, genuine
prompted by a sinister design to vex and humiliate a person must be
freedom being that which is limned by the freedom of others. If there
clearly and preponderantly established to entitle the victim to
is freedom of the press, ought there not also be freedom from the
damages. The law could not have meant to impose a penalty on the
press? It is in this sense that self-regulation as distinguished

82
right to litigate, nor should counsel’s fees be awarded every time a WHEREFORE, the petition is GRANTED. The Decision of the Court
party wins a suit.51 of Appeals of 25 March 1996 and its Resolution of 12 September 1996
denying reconsideration are REVERSED and SET ASIDE, and the
For, concluding with the wisdom in Warren v. Pulitzer Publishing complaint for damages against petitioners is DISMISSED.
Co.52— Petitioners’ counterclaim for damages is likewise DISMISSED for
lack of merit. No costs.
_______________
SO ORDERED.
49 Pennekamp v. Florida, 328 U.S. 331, 356, 365, 90 L Ed 1295, 66 S
Ct 1029 (1946).      Puno, Martinez and Buena, JJ., concur.

50 Mr. Justice White, concurring in Miami Herald Publishing Co. v.
Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct 2831 (1974).
51 See Que v. Intermediate Appellate Court, G.R. No. 66865, 13
January 1989, 169 SCRA 137; Arenas v. Court of Appeals, G.R. No.
56524, 27 January 1989, 169 SCRA 558.
52 78 S.W. 2, 413-416 (1934).
33
VOL. 301, JANUARY 14, 1999
     Mendoza, J., In the result.
Petition granted, judgment and resolution reversed and set aside.
Notes.—Truth is not a defense in libel, unless it is shown that the
matter charged as libelous was made with good motives and for
justifiable ends. (Alonzo vs. Court of Appeals, 241 SCRA 51 [1995])
Reliance on the rule of privileged communication in a suit for
malicious prosecution is misplaced, such defense being peculiar to
actions for libel. (Lao vs. Court of Appeals, 271 SCRA 477 [1997])
33

Borjal vs. Court of Appeals

Every man has a right to discuss matters of public interest. A

clergyman with his flock, an admiral with his fleet, a general with his
army, a judge with his jury, we are, all of us, the subject of public
discussion. The view of our court has been thus stated: ‘It is only in
despotisms that one must speak sub rosa, or in whispers, with bated
breath, around the corner, or in the dark on a subject touching the
common welfare. It is the brightest jewel in the crown of the law to
speak and maintain the golden mean between defamation, on one
hand, and a healthy and robust right of free public discussion, on the
other.’

83
 ROQUE VICARIO Y MENDEZ, petitioner, vs. COURT OF APPEALS
and PEOPLE OF THE PHILIPPINES, respondents.

Criminal Law; Libel; Definition of Libel; Elements of Libel.— Libel

is defined as a public and malicious imputation of a crime, or of a
vice or defect, real or imaginary, or any act, omission, condition,
status or circumstance tending to discredit or cause the dishonor or
contempt of a natural or juridical person, or to blacken the memory
of one who is dead. Thus, the elements of libel are: (a) imputation of
a discreditable act or condition to another; (b) publication of the
imputation; (c) identity of the person defamed; and, (d) existence of
malice.

Same; Same; A person’s liability for libel need not, admittedly,

stem from the fact that he was the original publisher of the
discreditable act.—A person’s liability for libel need not, admittedly,
stem from the fact that he was the original publisher of the
discreditable act. The maker of a libelous republication or repetition,
although not liable for the results of the primary publication, is liable
for the 

______________

* SECOND DIVISION.

26

26 SUPREME COURT REPORTS ANNOTATED 

Vicario vs. Court of Appeals

consequence of a subsequent publication which he makes or

G.R. No. 124491. June 1, 1999.* participates in making. It is no justification that the defamatory
matter is previously published by a third person, provided malice is
present.

Same; Same; To constitute malice, ill will must be personal.— In

order to constitute malice, ill will must be personal. So if the ill will is

84
engendered by one’s sense of justice or other legitimate or plausible
motive, such feeling negatives actual malice. The anger observed by
trial court to have been shown by the petitioner towards private
complainant at the time the former offered his testimony in defense
of libel cannot be properly considered as malice, either in fact or in
law, that accompanied the dissemination of an alleged libelous
publication.
Same; Same; The law presumes that malice is present in every
defamatory imputation; Exemption is a qualifiedly privileged
communication.—The law presumes that malice is present in every
defamatory imputation. However, on this score, Art. 354 of the
Revised Penal Code provides an exemption—x x x Paragraph 2
aforequoted refers to a qualifiedly privileged communication, the
character of which is a matter of defense that may be lost by positive
proof of express malice on the part of the accused. Once it is
established that the article is of a privileged character, the onus of
proving actual malice rests on the plaintiff who must then convince
the court that the offender was prompted by malice or ill will. When
this is accomplished the defense of privilege becomes unavailing.
PETITION for review on certiorari of a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
     Emerito M. Salva & Associates for petitioner.
     The Solicitor General for respondents.
BELLOSILLO, J.:
ROQUE VICARIO Y MENDEZ was charged with libel by the
Provincial Prosecutor of Catarman, Northern Samar, with Judge
Proceso Sidro of the Municipal Circuit Trial Court of Mondragon-San
Roque, Northern Samar, as complaining
27
VOL. 308, JUNE 1, 1999 27
Vicario vs. Court of Appeals
witness. According to the Information, the crime was committed
when Vicario allegedly distributed and circulated in the vicinity of
the Northern Samar Provincial Hospital in Catarman photocopies of
page 7 of the 20 March 1992 issue of the Philippine Daily
Inquirer which contained the following article1—
SAMAR JUDGE WHO POCKETED BOND 
CHARGED WITH GRAFT
OMBUDSMAN Conrado Vasquez yesterday filed with the
Sandiganbayan graft charges against a Northern Samar judge who
pocketed the P1,000.00 cash bond posted by a respondent in one of
several cases pending in his sala.
Charged was Judge Proceso Sidro of the Northern Samar municipal
circuit trial court in Mondragon.
Investigation showed that Sidro failed to deposit the cash bond with
his clerk-of-court, and refused to return the money even after the
accused who filed the bond was already acquitted in the case.
Private complainant Sidro alleged that petitioner’s act greatly
prejudiced his reputation as a member of the bench and caused him
great distress. Petitioner Vicario on the other hand disclaimed
responsibility for the distribution of the alleged libelous article, at the
same time asserting that the libel suit against him was ill-motivated
for he had filed a criminal charge for graft and corruption against
Judge Sidro before the Ombudsman and an administrative complaint
for dishonesty with the Supreme Court, both due to the latter’s
unjustified refusal and failure to return petitioner’s cash bond of
P1,000.00.
85
After trial, the court a quo found petitioner Vicario guilty of libel and
sentenced him to pay a fine of P200.00 with subsidiary
imprisonment in case of insolvency.2 The trial court justified its
decision by declaring that while no evidence was pre-
_______________
1 Exhs. “A” and “A-1,” Records, p. 8.
2 Decision penned by Judge Cesar R. Cinco, RTC-Br. 20, Catarman,
Northern Samar.
28
28 SUPREME COURT REPORTS ANNOTATED
Vicario vs. Court of Appeals
sented to show that Vicario distributed copies of the news article to
several persons, at least he gave one photocopy to prosecution
witness Amador Montes which amounted to publication, and that
this act was tainted with malice as it stemmed from Vicario’s hatred,
as evident from the manner his testimony was delivered, towards
complaining witness Sidro.3
On 28 February 1996 respondent Court of Appeals affirmed in
toto the decision of the trial court.4 Hence, this petition for review on
certiorari predicated on the following propositions5—
First. The news item in question is a privileged matter and since it
was published in the Philippine Daily Inquirer, a nationally
circulated newspaper, without any intervention of petitioner, his act
of giving a copy to a person named Amador Montes is not a libelous
act;
Second. Respondent court gravely erred in concluding that Amador
Montes saw petitioner distributing copy of the aforesaid issue of the
Philippine Daily Inquirer;
Third. Respondent court gravely erred in considering the affidavit-
complaint petitioner filed with the Ombudsman which was
completely immaterial and impertinent to the issue of whether or not
the act of petitioner in giving a copy of the Philippine Daily Inquirer
to Amador Montes where the news item was published, constitutes
the crime of libel;
Fourth. Respondent court seriously erred in citing authorities which
are not applicable in deciding whether petitioner’s act of giving a
copy of the Philippine Daily Inquirer to Amador Montes constituted
the crime of libel;
Fifth. Respondent court gravely erred in adopting the conclusion of
the trial court that petitioner’s act of giving a copy of the Philippine
Daily Inquirer to Amador Montes was motivated by his intense
hatred against Judge Sidro, it being clear that such act was an
insufficient and inadequate evidence of the alleged intense hatred of
petitioner; and,
______________
3 Id., pp. 48-53.
4 Rollo, Id., 40-47.
5 Petition, p. 16, Rollo, p. 23.
29
VOL. 308, JUNE 1, 1999 29
Vicario vs. Court of Appeals
Sixth. Respondent court gravely erred, in the final analysis, in not
acquitting petitioner on the ground of reasonable doubt.
Two (2) main issues are laid before us: (a) whether the act of merely
distributing a photocopy of an article in a newspaper reporting that
86
graft charges had been filed against a judge named therein
constitutes libel, and (b) whether Vicario’s act was proved beyond
reasonable doubt.
Libel is defined as a public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission, condition,
status or circumstance tending to discredit or cause the dishonor or
contempt of a natural or juridical person, or to blacken the memory
of one who is dead.6 Thus, the elements of libel are: (a) imputation of
a discreditable act or condition to another; (b) publication of the
imputation; (c) identity of the person defamed; and, (d) existence of
malice.7
The evidence on record clearly shows that the elements above
enumerated have not been satisfactorily established as to conclude
that libel was committed by petitioner. Thus, we rule in his favor. For
an incongruency exists between the evidence on one hand, and the
findings of fact and of law by the trial court and the appellate court
on the other, which we must reconcile, if not rectify.
As found by the trial court, there was no evidence at all to show that
petitioner was the source of the statements contained in the news
item published by the Philippine Daily Inquirer. Indeed, for not only
was the news item by itself bereft of this information, the records
also confirmed its absence. This is why it was incorrect for the
appellate court to find that “the news item was patently culled from
the Affidavit-Complaint of the appellant imputing a criminal act on
Judge Sidro filed with the Ombudsman (emphasis ours)” when no
basis, factual or legal, exists for so ruling. To be sure,  was filed against the newspaper because what appears settled is that
________________
6 Art. 353, Revised Penal Code.
7 Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191
SCRA 61, 67.
30
30 SUPREME COURT REPORTS ANNOTATED
Vicario vs. Court of Appeals
the Affidavit-Complaint was merely a narration of the facts
constituting the cause of action of petitioner. Its contents never
appeared in the news article which spoke only of the filing by the
Ombudsman with the Sandiganbayan of graft charges against
Judge Sidro after its investigation of a complaint that the judge
refused to return the cash bond of an accused after the latter’s
acquittal in a criminal case. There is no specific reference therein to
petitioner nor to his Affidavit-Complaint. Since it has not been
established that he caused the publication of the subject article nor
was the source thereof, it would be inappropriate to conclude that
through the disputed news item he ascribed a criminal act to Judge
Proceso Sidro. Parenthetically, it would have been more accurate for
the appellate court to state that the news article was culled from the
resolution of the Ombudsman directing the filing of a criminal
charge based on the results of his investigation of a complaint
leveled against the named judge. But then, if it did, it would have
been left with no basis at all to hold, as in fact it did, that Vicario
maliciously imputed a discreditable act to respondent judge, and
there would be no more justification for the finding that the first
element of libel was established.
The trial court also opined that no suit arising from the publication
the item was merely a fair and true report, with no comments or
remarks, of official or judicial proceedings which are not classified
as confidential. Again, a perusal of the subject news item confirms
this fact. Then the trial court proceeded to state that the accused
(petitioner) however publicized the newspaper item because “shown
by competent and relevant evidence was the giving (by Vicario) of a
xerox copy of the publicized item to Amador Montes.” But was
petitioner indeed guilty of republication of a libelous article?
In his appeal, petitioner disputes the existence of the elements of
publication and malice,8 arguing that inasmuch as he 
87
_______________
8 Petition, p. 19, Rollo, p. 32.
31
VOL. 308, JUNE 1, 1999
Vicario vs. Court of Appeals
was not the author or originator of the subject article in
the Philippine Daily Inquirerhe could not be liable for its
publication. The Court of Appeals brushed aside this proposition,
declaring in the main that by having the news item machine copied
and furnishing prosecution witness Montes a copy thereof, accused-
appellant thereby endorsed and adopted the news item and hence
was answerable therefor. We note the American citations relied upon
by the appellate court to support its conclusions. However, we deem
these as not authoritative, much less persuasive upon the Court,
considering further that there are dissimilarities in the facts between
the cited cases and this case before us.
Contrary to the perception of the appellate court, there was no
evidence at all offered to show that petitioner himself photocopied
the article. Nor was evidence sufficiently adduced to prove that he
himself distributed photocopies of the news item to so many people,
prompting the trial court to rule as hearsay the testimony on the
matter by Judge Sidro and his protégé Amador Montes. This puts to
doubt whether petitioner himself gave a copy of the publication to
Montes. Notably, Montes was not even named by the judge as one of
the original witnesses listed in the complaint he filed for preliminary
investigation. The witness named therein was a certain Hermito
Pahimnayan who was never presented in court despite his having
executed an affidavit which was attached to Sidro’s criminal
complaint in the Municipal Trial Court. This affidavit described not
the incident of 22 May 1992 on which the charge for libel was based
but one which occurred sometime in 1991 or a year earlier during
which Vicario was said to have shown Pahimnayan a copy of his
administrative complaint against Judge Sidro. Moreover, in the
affidavit executed by Judge Sidro which he also attached to his
complaint, he declared that it was Romeo Pinangay, his court
messenger, who gave him a copy of Philippine Daily Inquirer and
informed him that Roque Vicario distributed clippings of the news
item to everyone in the premises of the hospital. Amador Montes was
never mentioned in this affidavit; much less was he made to execute
any affidavit to support the criminal complaint of Judge Sidro. This
31 much he admitted on the wit-
32
32 SUPREME COURT REPORTS ANNOTATED
Vicario vs. Court of Appeals
ness stand.9 Other than the testimony of Montes himself, an
acknowledged subaltern of the judge, no one else was presented to
establish the fact of distribution by petitioner of copies of the alleged
offensive news article. The prosecution could have offered other
witnesses with more objective dispositions than Montes, but it did
not do so. With these doubts subsisting, it was therefore reversible
error of the courts below to conclude that petitioner was liable for the
republication of the news article alleged to be libelous.
A person’s liability for libel need not, admittedly, stem from the fact
that he was the original publisher of the discreditable act. The maker
of a libelous republication or repetition, although not liable for the
results of the primary publication, is liable for the consequence of a
subsequent publication which he makes or participates in making. It
is no justification that the defamatory matter is previously published
by a third person,10 provided malice is present.
Granting arguendo the correctness of the finding by the lower courts
that petitioner did at least distribute a machine copy of the article to
one Amador Montes, an acknowledged “batos”11 of Judge Sidro, was
there sufficient basis to ascribe malice in his act?
The trial court rationalized that “the accused has all the motivations
to do so (i.e., distribute a copy to Montes) because of his intense
hatred against complainant, manifested even by the very manner
88
he gave testimony, who would not return to him an amount that he
had to borrow from a loan shark (there is nothing to show that the
same was returned to the accused). x x x x Even so, such actuation x
x x in disseminating through Montes is removed from the protection
accorded to a privileged communication under the foregoing
circumstances.” This is flawed reasoning, a veritable non sequitur. It
is established  fact or in law, that accompanied the dissemination of an alleged
________________
9 TSN, 4 August 1993, p. 18.
10 Reyes, Leonardo P., Fundamentals of Libel Law, 1986, pp. 14-15,
citing Sourbier v. Brown, 123 N.E. 802, 188 Ind. 544; Coffey
v. Midland Broadcasting Co., D.C. Mo. 8 F Supp. 889; Wayne
Works v. Hicks Body Co., 55 N.E. 2d 382, 115 Ind.
11 “Batos” is the local Waray term for “factotum.”
33
VOL. 308, JUNE 1, 1999
Vicario vs. Court of Appeals
doctrine that the malice that attends the dissemination of the article
alleged to be libelous must attend the distribution itself. It cannot be
merely a resentment against a person manifested unconnectedly
several months earlier or one displayed at a much later date, as what
happened in this case. A fine-tooth comb dissection of the testimony
of prosecution witness Amador Montes reveals none that would
indicate, much less hint at, the attitude and mental frame of Vicario
at the time he allegedly handed over the photocopy of the news item
in question to Montes. If at all, as can be gathered from the
testimonial narration, Vicario’s attitude could only be described as
noncommittal.
In order to constitute malice, ill will must be personal. So if the ill
will is engendered by one’s sense of justice or other legitimate or
plausible motive, such feeling negatives actual malice.12 The anger
observed by trial court to have been shown by the petitioner towards
private complainant at the time the former offered his testimony in
defense of libel cannot be properly considered as malice, either in
libelous publication. For the anger discerned of petitioner on the
witness stand could also mean anger not only borne out of a sense of
justice frustrated by the continued refusal of Judge Sidro to return to
him his cash bond, but also at being criminally sued in court for an
act which he stoutly believed was not imputable to him. This state of
mind cannot be appropriately considered malice and applied
retroactively to the time of the distribution of the alleged libelous
article unless clear and convincing evidence shows otherwise; and,
there is no such contrary evidence in the case at bar. Since there is no
indication about the cause of such display of “intense hatred” by the
petitioner for Judge Sidro, the Court will grant him the benefit of the
doubt under the “equipoise doctrine.”13
_______________
33 12 Aquino, Ramon C., The Revised Penal Code, Vol. III, Bk. II, 1997
Ed., citing People v. de los Reyes, Jr., 47 OG 3569.
13 The “equipoise doctrine” is the rule which states that when the
evidence of the prosecution and the defense are so evenly bal-
34
34 SUPREME COURT REPORTS ANNOTATED
Vicario vs. Court of Appeals
There was nothing defamatory in the news item. This much was
found by the trial court itself, noting that the published article was
merely a factual report about the filing by the Ombudsman of the
charge of corruption against the judge with the Sandiganbayan. Of
course, it does not necessarily mean that if the news article
89
complained of is not libelous because it is a privileged matter, he who
repeats the publication is likewise free from accountability for the re-
utterance. We recognize that a person’s liability for libel does not
necessarily proceed from the fact that he was the original publisher
of the discreditable act. The maker of a libelous republication or
repetition, although not liable for the results of the primary
publication, is liable for the consequences of a subsequent
publication which he makes or participates in making so long as the
elements of libel are satisfied. But in every case malice must be
present, something which has not been shown in the case at bar.
The law presumes that malice is present in every defamatory
imputation. However, on this score, Art. 354 of the Revised Penal
Code provides an exemption—
Art. 354. Requirement for publicity.—Every defamatory imputation
is presumed to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown, except in the following
cases x x x x 2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of their
functions (emphasis supplied).
_______________
anced the appreciation of such evidence calls for the tilting of the
scales in favor of the accused. Thus, the evidence for the prosecution
must be heavier to overcome the presumption of innocence of the
accused. The constitutional basis of the rule is the Bill of Rights
which finds expression in Sec. 1, par. (a), Rule 115 of the 1985 Rules
on Criminal Procedure as amended (see People v. Argawamon, 215
SCRA 652; People v. Ramilla, G.R. No. 101435, 8 November
1993, 227 SCRA 583; People v. Dela Iglesia, G.R. Nos. 110991-92, 24
Feb. 1995, 241 SCRA 719).
35
VOL. 308, JUNE 1, 1999 35
Vicario vs. Court of Appeals
Paragraph 2 aforequoted refers to a qualifiedly privileged
communication, the character of which is a matter of defense that
may be lost by positive proof of express malice on the part of the
accused. Once it is established that the article is of a privileged
character, the onus of proving actual malice rests on the plaintiff who
must then convince the court that the offender was prompted by
malice or ill will. When this is accomplished the defense of privilege
becomes unavailing.14 Since the prosecution failed to establish
express malice on the part of petitioner by positive proof, its cause
perforce must fail.
WHEREFORE, this petition is GRANTED. The decision of the
Regional Trial Court of Catarman, Northern Samar, dated 11 March
1993 finding petitioner guilty of libel, and that of the Court of
Appeals dated 28 February 1996 affirming his conviction are
REVERSED and SET ASIDE. Petitioner ROQUE VICARIO Y
MENDEZ is ACQUITTED of the crime charged.
SO ORDERED.
     Puno, Mendoza, Quisumbing and Buena, JJ., concur.
Petition granted, judgment reversed and set aside. Petitioner
acquitted.
Note.—Petitioner was not able to establish satisfactorily that the
issuance of the letter and its offending paragraph was motivated by
malice. (Fortich vs. Court of Appeals, 268 SCRA 152 [1997])
90
 only upon their sense, grammatical significance, and accepted ordinary meaning judging them
separately, but also upon the special circumstances of the case, antecedents or relationship
between the offended party and the offender, which might tend to prove the intention of the
offender at the time.

Same; Same; The expression “putang ina mo” is a common enough utterance in the dialect
that is often employed, not really to slander but rather to express anger or displeasure.—In
Reyes vs. People, we ruled that the expression “putang ina mo” is a common enough utterance
in the dialect that is often employed, not really to slander but rather to express anger or
displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of 

______________

* FIRST DIVISION.

118

118 SUPREME COURT REPORTS ANNOTATED 

Pader vs. People

profanity. We do not find it seriously insulting that after a previous incident involving his
father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger.
Obviously, the intention was to show his feelings of resentment and not necessarily to insult
the latter. Being a candidate running for vice mayor, occasional gestures and words of
disapproval or dislike of his person are not uncommon.

G.R. No. 139157. February 8, 2000.* PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the resolution of the Court.

ROGELIO PADER,      Elmer G. Train for petitioner.

petitioner, vs. PEOPLE OF THE      The Solicitor General for respondent.

PHILIPPINES, respondent.
RESOLUTION
Criminal Law; Defamation;  Doctrine that guides the court in resolving the issue of whether
petitioner is guilty of slight or serious oral defamation.—The issue is whether petitioner is PARDO, J.:
guilty of slight or serious oral defamation. In resolving the issue, we are guided by a doctrine
of ancient respectability that defamatory words will fall under one or the other, depending not

91
What is before the Court is an appeal via certiorari from a decision1 of the Court of Appeals
affirming that of the Regional Trial Court, Branch 1, Balanga, Bataan2affirming petitioner’s
conviction of grave oral defamation by the Municipal Trial Court, Bagac, Bataan.3
The facts may be summarized as follows: On April 20, 1995, at about 8:00 p.m., Atty.
Benjamin C. Escolango was conversing with his political leaders at the terrace of his house at
Morong, Bataan when petitioner appeared at the gate and shouted “putang ina mo Atty.
Escolango. Napakawalanghiya mo!” The latter was dumb-founded and embarrassed. At that
time, Atty. Escolango was a candidate for vice mayor of Morong, Bataan in the elections of
May 8, 1995. 
_______________
1 In CA-G.R. CR No. 21710, promulgated on May 3, 1999,
Justice Romeo A. Brawner, ponente, and concurred in by
Justices Angelina Sandoval-Gutierrez and Martin S. Villarama,
Jr.
2 In Crim. Case No. 6726, Judge Benjamin T. Vianzon.
3 In Crim. Case No. 2339, Judge Antonio C. Quintos.
119
VOL. 325, FEBRUARY 8, 2000
Pader vs. People
On June 16, 1995 Atty. Escolango filed with the Municipal Trial Court, Bagac, Bataan a
complaint against petitioner for grave oral defamation, to which petitioner pleaded “not
guilty.”4
After due trial, on October 30, 1997 the Municipal Circuit Trial Court, Bagac, Bataan rendered
decision convicting petitioner of grave oral defamation.5 The dispositive portion reads:
“Accordingly and in view of all the foregoing, the court finds
accused Rogelio Pader guilty beyond reasonable doubt of the
crime of Grave Oral Defamation as defined and penalized
under Article 358 of the Revised Penal Code and considering
the extenuating circumstances of drunkenness hereby sentences
him to an imprisonment of one (1) month and one (1) day to
one (1) year imprison-ment6 and to indemnify the private
offended party in the amount of P20,000.00 as moral damages,
considering his social standing and professional stature.
“SO ORDERED.
“Bagac-Morong, Bataan
“October 30, 1997.
“ANTONIO C. QUINTOS 
“Acting Mun. Circuit Trial Judge”7
On appeal, on March 4, 1998, the Regional Trial Court affirmed the decision of the Municipal
Trial Court in toto. The decretal portion of the decision reads:
“After considering the evidence adduced by the parties together
with their respective memorandum, this Court finds no re-
119
_____________
4 Rollo, p. 23.
5 Rollo, pp. 23-25.
6 The imposition of an indeterminate sentence where the
penalty actually imposed is not more than one year
imprisonment is wrong [See Humilde vs. Pablo, 190 Phil. 621,
623 (1981) and People vs. Arellano, 68 Phil. 678 (1939); See
also R.C. Aquino, Revised Penal Code, 1987 Edition, Vol. 1,
pp. 726-727].
92
7 Rollo, p. 25. “Associate Justice”10

120 Hence, this petition.11

120 SUPREME COURT REPORTS ANNOTATED  issue, we are guided by a doctrine of ancient respectability that defamatory words will fall
Pader vs. People
versible error8 on the penalty imposed as well as the moral
damages awarded by the Municipal Circuit Trial Court of
Bagac-Morong, Bataan and therefore affirms the same in toto.
“x x x
“SO ORDERED.
“Given this 4th day of March 1998 at Balanga, Bataan.
“BENJAMIN T. VIANZON 
“Judge”9
Elevated to the Court of Appeals by petition for review, on May 3, 1999 the Court of Appeals
affirmed the Regional Trial Court’s decision but with modification as to the penalty imposed,
as follows:
“WHEREFORE, in view of the foregoing, the judgment
appealed from is hereby affirmed but with the modification that
the accused-appellant, Rogelio Pader is sentenced to serve a
prison term of four (4) months and one (1) day of arresto
mayor.
The issue is whether petitioner is guilty of slight or serious oral defamation. In resolving the
under one or the other, depending not only upon their sense, grammatical significance, and
accepted ordinary 
_______________
8 Regrettably, Regional Trial Court Judge Vianzon failed to
note the error in the imposition of an indeterminate penalty and
the award of moral damages, not knowing any better. Both
judges should take refresher lessons on the application of the
penalties and the Indeterminate Sentence Law.
9 Regional Trial Court Decision, Rollo, pp. 26-28.
10 Court of Appeals’ Decision, Rollo, pp. 30-35.
11 Filed on July 20, 1999, Rollo, pp. 8-20.
121
VOL. 325, FEBRUARY 8, 2000  121
Pader vs. People
meaning judging them separately, but also upon the special circumstances of the case,
antecedents or relationship between the offended party and the offender, which might tend to
prove the intention of the offender at the time.12

“SO ORDERED. Unquestionably, the words uttered were defamatory. Considering, however, the factual
backdrop of the case, the oral defamation was only slight. The trial court, in arriving at its
decision, considered that the defamation was deliberately done to destroy Atty. Escolango’s
“ROMEO A. BRAWNER reputation since the parties were political opponents.

93
We do not agree. Somehow, the trial court failed to appreciate the fact that the parties were WHEREFORE, we resolve to DENY the petition. However, we set aside the decision of the
also neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the Court of Appeals in CA-G.R. CR No. 21710 and find petitioner Rogelio Pader guilty only of
fact that petitioner’s anger was instigated by what Atty. Escolango did when petitioner’s father slight oral defamation. We impose on him a fine of P200.00 and costs.
died.13 In which case, the oral defamation was not of serious or insulting nature.
SO ORDERED.
In Reyes vs. People,14 we ruled that the expression “putang ina mo” is a common enough
utterance in the dialect that is often employed, not really to slander but rather to express anger
     Puno,  Kapunan and Ynares-Santiago, JJ., concur.
or displeasure. In fact, more often, it is just an expletive that punctuates one’s expression of
profanity. We do not find it seriously insulting that after a previous incident involving his
father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger.      Davide, Jr. (C.J., Chairman), It should not be denial of the petition, but a partial grant
Obviously, the intention was to show his feelings of resentment and not necessarily to insult thereof.
the latter. Being a candidate running for vice mayor, occasional gestures and words of
disapproval or dislike of his person are not uncommon. 
Petition denied but judgment of Court of Appeals in CA-G.R. CR No. 21710 set aside.

_____________ Petitioner guilty only of slight oral defamation with a fine of P200.00.

12 Victorio vs. Court of Appeals, 173 SCRA

645 [1989]; Larobis vs. Court of Appeals, 220 SCRA
639[1993]; Balite vs. People, 18 SCRA 280 [1996]; Padilla,
Ambrosio, Revised Penal Code Annotated, 1990 edition, Vol.
4, pp. 357-358.

13 Municipal Trial Court Decision in Criminal Case No. 2339,

Rollo, pp. 23-25; Regional Trial Court Decision in Criminal
Case No. 6726, Rollo, pp. 26-28.

14 137 Phil. 112, 120 [1969].

122

122 SUPREME COURT REPORTS ANNOTATED 

Pader vs. People

In similar fashion, the trial court erred in awarding moral damages without proof of
suffering.15 Accordingly, petitioner may be convicted only of slight oral defamation defined
and penalized under Article 358, Revised Penal Code, prescribing the penalty of arresto
mayor or a fine not exceeding 200 pesos.

94

G.R. No. 157643. March 28, 2008.*
CRISTINELLI S. FERMIN,
petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Criminal Law; Libel; Proof of knowledge of and participation
in the publication of the offending article is not required, if the
accused has been specifically identified as “author, editor, or
proprietor” or “printer/publisher” of the publication.—
In U.S. v. Taylor, the accused was indicted under Section 6 of
Act No. 277 which provides that: “Every author, editor or
proprietor of any book, newspaper, or serial publication is
chargeable with the publication of any words contained in any
part of said book or number of each newspaper or serial as
fully as if he were the author of the same.” However, proof
adduced during the trial showed that accused was
the manager of the publication without the corresponding
evidence that, as such, he was directly responsible for the
writing, editing, or publishing of the matter contained in the
said libelous article. In People v. Topacio and Santiago,
reference was made to the Spanish text of Article 360 of the
Revised Penal Code which includes the verb “publicar.” Thus,
it was held that Article 360 includes not only the author or the
person who causes the libelous matter to be published, but also
the person who prints or publishes it. Based on these cases,
therefore, proof of knowledge of and participation in the
publication of the offending article is not required, if the
accused has been specifically identified as “author, editor, or
proprietor” or “printer/publisher” of the publication, as
petitioner and Tugas are in this case.
Same; Same; Whether or not a “publisher” who is also the
“president” and “chairperson” of a publication had actual
knowledge and participation in the publication of a libelous
article, she can be convicted for the resulting libel, having
furnished the means of carrying on the publication of the
article purportedly prepared by the members of the reportorial
team, who were employees under her control and supervision.
—It is worthy to note that petitioner was not only the
“publisher,” as shown by the editorial box of Gossip Tabloid,
but also its “president” and “chairperson” as she herself
admitted on the witness stand. She also testified that she
handled the business
_______________
* THIRD DIVISION.
133
VOL. 550, MARCH 28, 2008 133
Fermin vs. People
95
aspect of the publication, and assigns editors to take charge of
everything. Obviously, petitioner had full control over the
publication of articles in the said tabloid. Her excuse of lack of
knowledge, consent, or participation in the release of the
libelous article fails to persuade. Following our ruling
in Ocampo,  petitioner’s criminal guilt should be affirmed,
whether or not she had actual knowledge and participation,
having furnished the means of carrying on the publication of
the article purportedly prepared by the members of the Gossip
Reportorial Team, who were employees under her control and
supervision.
Same; Same; Judgments; Statutory Construction; Article 360
is clear and unambiguous, and to apply People v. Beltran and
Soliven, CA-G.R. No. 13561, 6 November 1995, which requires
specific knowledge, participation, and approval on the part of
the publisher to be liable for the publication of a libelous
article, would be reading into the law an additional
requirement that was not intended by it.—Petitioner argues
that Ocampo has been clarified by the CA in People v. Beltran
and Soliven such that Maximo V. Soliven, as publisher of The
Philippine Star, was acquitted by the appellate court in view of
the lack of evidence that he knew and approved the article
written by Luis D. Beltran about then President Corazon C.
Aquino in the newspaper’s October 12, 1987 issue. Petitioner
submits that People v. Beltran and Soliven serves as a guide to
this Court regarding the criminal liability of the publisher of
the newspaper where a libelous article is published. Put
differently, it appears that petitioner wants this Court to follow
the CA decision and adopt it as judicial precedent under the
principle of stare decisis. The doctrine of stare decisis,
embodied in Article 8 of the Civil Code, is enunciated, thus:
The doctrine of stare decisis enjoins adherence to judicial
precedents. It requires courts in a country to follow the rule
established in a decision of the Supreme Court thereof. That
decision becomes a judicial precedent to be followed in
subsequent cases by all courts in the land. The doctrine of stare
decisis is based on the principle that once a question of law has
been examined and decided, it should be deemed settled and
closed to further argument. (Emphasis supplied) Unfortunately,
the Beltran decision attained finality at the level of the CA.
Thus, if the CA seemingly made a new pronouncement
regarding the criminal liability of a publisher under Article 360
of the Revised Penal Code, that ruling cannot bind this Court
unless we purposely adopt the same. Be that as it may, we find
no 134
134 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
compelling reason to revisit U.S. v. Ocampo; to modify it
would amount to judicial legislation. Article 360 is clear and
unambiguous, and to apply People v. Beltran and Soliven,
which requires specific knowledge, participation, and approval
on the part of the publisher to be liable for the publication of a
libelous article, would be reading into the law an additional
requirement that was not intended by it.
Same; Same; Words and Phrases; A libel is defined as a public
and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the
memory of one who is dead.—A libel is defined as a public and
malicious imputation of a crime, or of a vice or defect, real or
96
imaginary; or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the
memory of one who is dead. In determining whether a
statement is defamatory, the words used are to be construed in
their entirety and should be taken in their plain and ordinary
meaning as they would naturally be understood by persons
reading them, unless it appears that they were used and
understood in another sense. To say that the article, in its
entirety, is not libelous disturbs one’s sensibilities; it would
certainly prick one’s conscience. There is evident imputation of
the crime of malversation (that the complainants converted for
their personal use the money paid to them by fellow Filipinos
in America in their business of distributing high-end
cookware); of vices or defects for being fugitives from the law
(that complainants and their family returned to the Philippines
to evade prosecution in America); and of being a wastrel (that
Annabelle Rama Gutierrez lost the earnings from their business
through irresponsible gambling in casinos). The attribution was
made publicly, considering that Gossip Tabloid had a
nationwide circulation. The victims were identified and
identifiable. More importantly, the article reeks of malice, as it
tends to cause the dishonor, discredit, or contempt of the
complainants.
Same; Same; In the instant case, not only was there malice in
law, the article being malicious in itself, but there was also
malice in fact, as there was motive to talk ill against the
complainants during the electoral campaign.—It can be
gleaned from her testimony that petitioner had the motive to
make defamatory imputations against 135
VOL. 550, MARCH 28, 2008
Fermin vs. People
complainants. Thus, petitioner cannot, by simply making a
general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being
malicious in itself, but there was also malice in fact, as there
was motive to talk ill against complainants during the electoral
campaign.
Same; Same; Although a wide latitude is given to critical
utterances made against public officials in the performance of
their official duties, or against public figures on matters of
public interest, such criticism does not automatically fall
within the ambit of constitutionally protected speech—if the
utterances are false, malicious or unrelated to a public
officer’s performance of his duties or irrelevant to matters of
public interest involving public figures, the same may give rise
to criminal and civil liability.—Neither can petitioner take
refuge in the constitutional guarantee of freedom of speech and
of the press. Although a wide latitude is given to critical
utterances made against public officials in the performance of
their official duties, or against public figures on matters of
public interest, such criticism does not automatically fall within
the ambit of constitutionally protected speech. If the utterances
are false, malicious or unrelated to a public officer’s
performance of his duties or irrelevant to matters of public
interest involving public figures, the same may give rise to
criminal and civil liability. While complainants are considered
public figures for being personalities in the entertainment
business, media people, including gossip and intrigue writers
and commentators such as petitioner, do not have the unbridled
135 license to malign their honor and dignity by indiscriminately
97
airing fabricated and malicious comments, whether in
broadcast media or in print, about their personal lives.
Same; Same; Administrative Circular No. 08-2008 (Guidelines
in the Observance of a Rule of Preference in the Imposition of
Penalties in Libel Cases); While Administrative Circular No.
08-2008 expresses a preference for the imposition of a fine
rather than imprisonment, it likewise allows the court, in the
exercise of sound discretion, the option to impose
imprisonment as penalty, whenever the imposition of a fine
alone would depreciate the seriousness of the offense, work
violence on the social order, or otherwise be contrary to the
imperatives of justice.—With respect to the penalty to be
imposed for this conviction, we note that on January 25, 2008,
the Court issued Administrative Circular No. 08-2008,
entitled Guidelines in 136
136 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
the Observance of a Rule of Preference in the Imposition of
Penalties in Libel Cases. The Circular expresses a preference
for the imposition of a fine rather than imprisonment, given the
circumstances attendant in the cases cited therein in which only
a fine was imposed by this Court on those convicted of libel. It
also states that, if the penalty imposed is merely a fine but the
convict is unable to pay the same, the Revised Penal Code
provisions on subsidiary imprisonment should apply. However,
the Circular likewise allows the court, in the exercise of sound
discretion, the option to impose imprisonment as penalty,
whenever the imposition of a fine alone would depreciate the
seriousness of the offense, work violence on the social order, or
otherwise be contrary to the imperatives of justice.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
    The facts are stated in the opinion of the Court.
 Reyes, Francisco and Associates; Eufracio Segundo C. Pagunuran, Alfredo A. Dy  and Louis
P. Acosta for petitioner.
 The Solicitor General for respondent.
NACHURA, J.:
Before us is a petition 1 for review on certiorari, under Rule 45 of the Rules of Court, of the
Decision2 dated September 3, 2002 and the Resolution3 dated March 24, 2003 of the Court of
Appeals (CA) in CA-G.R. CR No. 20890 entitled “People of the Philippines v. Cristenelli S.
Fermin and Bogs C. Tugas.”
On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2)
criminal informations for
_______________
1 Rollo, pp. 3-43.
2 Penned by Associate Justice Salvador J. Valdez, Jr., with
Associate Justices Mercedes Gozo-Dadole and Amelita G.
Tolentino, concurring; id., at pp. 45-60.
3 Id., at pp. 62-67.
137
VOL. 550, MARCH 28, 2008 137
Fermin vs. People
98
libel4 were filed against Cristinelli5 S. Fermin and Bogs C. Tugas before the Regional Trial when in truth and in fact, the accused very well knew that the
Court (RTC) of Quezon City, Branch 218. Except for the name of the complainant, 6 the
informations uniformly read— same are entirely false and untrue but were publicly made for
no other purpose than to expose said ANNABELLE RAMA
“That on or about the 14th day of June, 1995 in Quezon City, GUTIERREZ to humiliation and disgrace, as it depicts her to
Philippines, the above-named accused CRISTENELLI be a fugitive from
SALAZAR FERMIN, publisher, and BOGS C. TUGAS,
Editor-in-Chief of Gossip Tabloid with offices located at 68-A _______________
Magnolia Tulip St., Roxas District, Quezon City, and
circulated in Quezon City and other parts of Metro Manila and 4 Both entitled “People of the Philippines v. Cristenelli S.
the whole country, conspiring together, confederating with and Fermin and Bogs C. Tugas” and docketed as Criminal Cases
mutually helping each other, publicly and acting with malice, Nos. Q-95-62823 and Q-95-62824.
did then and there willfully, unlawfully and feloniously print
and circulate in the headline and lead story of the said GOSSIP 5 Also referred in the records as Cristenelli.
TABLOID issue of June 14, 1995 the following material, to
wit: 6 Annabelle Rama Gutierrez in one, and Eduardo (Eddie)
Gutierrez in the other.
“MAS MALAKING HALAGA ANG NADISPALKO
NILA SA STATES, MAY MGA NAIWAN DING 138
ASUNTO DOON SI ANNABELLE”
138 SUPREME COURT REPORTS ANNOTATED
“IMPOSIBLENG NASA AMERIKA NGAYON SI
ANNABELLE DAHIL SA KALAT DIN ANG Fermin vs. People
ASUNTO NILA DU’N, BUKOD PA SA
NAPAKARAMING PINOY NA HUMAHANTING SA
justice and a swindler, thereby causing dishonor, discredit and
KANILA MAS MALAKING PROBLEMA ANG
contempt upon the person of the offended party, to the damage
KAILANGAN NIYANG HARAPIN SA STATES
and prejudice of the said ANNABELLE RAMA GUTIERREZ.
DAHIL SA PERANG NADISPALKO NILA,
NAGHAHANAP LANG NG SAKIT NG KATAWAN
CONTRARY TO LAW.”7
SI ANNABELLE KUNG SA STATES NGA NIYA
MAIISIPANG PUMUNTA NGAYON PARA LANG Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded “not guilty.”
TAKASAN NIYA SI LIGAYA SANTOS AT ANG Thereafter, a joint trial ensued.
SINTENSIYA SA KANYA”
After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision 8dated
January 27, 1997, found petitioner and Tugas guilty of libel. The dispositive portion of the
Joint Decision reads—

99
“WHEREFORE, prosecution having established the guilt of the 9 Id., at pp. 193-194.
accused, judgment is hereby rendered finding CRISTENELLI
S. FERMIN and BOGS C. TUGAS GUILTY beyond 139

reasonable doubt, of libel, punishable under Art. 355 of the

Revised Penal Code and sentences them to an indeterminate VOL. 550, MARCH 28, 2008 139
penalty of three (3) months and eleven (11) days of arresto
mayor, as minimum, to one (1) year, eight (8) months and Fermin vs. People
twenty-one (21) days of prision correccional, as maximum, for
each case. firmed the conviction of petitioner, but acquitted Tugas on account of non-participation in the
publication of the libelous article. The fallo of the Decision reads—

Likewise, accused Cristenelli S. Fermin and Bogs Tugas are “WHEREFORE, judgment is hereby rendered as follows:
sentenced to pay jointly and solidarily:
1. The appealed decision as against the accused-
a) moral damages of: appellant BOGS C. TUGAS is REVERSED and SET
ASIDE, and another is entered ACQUITTING him of
1. P500,000.00 to Annabelle Rama in Criminal Case the crime charged and ABSOLVING him from any civil
No. Q-95-62823; and liability; and
2. P500,000.00 to Eddie Gutierrez in Criminal Case 2. The same appealed decision as against accused-
No. Q-95-62824; appellant CRISTENELLI S. FERMIN is AFFIRMED,
with the MODIFICATION that the award of moral
b) attorney’s fees of P50,000.00. damages is REDUCED to P300,000.00 for EACH
offended party, and the award of attorney’s fees is
SO ORDERED.”9 DELETED.
Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its Decision dated
September 3, 2002, af- Costs against the appellant FERMIN.

_______________ SO ORDERED.”10

7 Records, pp. 2-3. The CA denied petitioner’s motion for reconsideration for lack of merit in the Resolution dated
March 24, 2003. Hence, this petition, raising the following arguments:

8 Id., at pp. 181-194. I.

100
THE RULING IN U.S. VS. TAYLOR, PEOPLE VS.
TOPACIO AND SANTIAGO, U.S. VS. MADRIGAL AND U.S.
VS. SANTOS AND THE HOLDING IN U.S. VS. OCAMPO AS
CLARIFIED BY THE COURT OF APPEALS IN PEOPLE
VS. BELTRAN AND SOLIVENREQUIRING KNOWLEDGE,
PARTICIPATION AND COMPLICITY BY THE
PUBLISHER IN THE PREPARATION AND APPROVAL
OF THE LIBELOUS ARTICLE TO SUSTAIN THE
LATTER’S CONVICTION FOR LIBEL ARE APPLICABLE
IN THE PRESENT CASE.
II.
ART. 360 OF THE REVISED PENAL CODE WHICH
MAKES A PUBLISHER LIABLE FOR LIBEL TO THE
SAME EXTENT AS IF HE WERE THE AUTHOR
THEREOF MERELY CREATES A DIS-
_______________
10 Rollo, pp. 59-60.
140
140 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
PUTABLE PRESUMPTION WHICH MAY BE REBUTTED
BY CONTRARY EVIDENCE.
III.
THE QUESTIONED ARTICLE IS NOT LIBELOUS.
IV.
THE QUESTIONED ARTICLE IS PROTECTED BY THE
MANTLE OF THE FREEDOM OF THE PRESS AND IS
WITHIN THE REALM OF FAIR AND HONEST
COMMENT.11
Being interrelated, we shall discuss the first and the second issues jointly, then the third and the
fourth issues together.
Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal
Code, it is mandatory that the publisher knowingly participated in or consented to the
preparation and publication of the libelous article. This principle is, allegedly, based on our
ruling in U.S. v. Taylor,12 People v. Topacio and Santiago,13U.S. v. Madrigal,14 U.S. v. Abad
Santos,15 and U.S. v. Ocampo,16 as purportedly clarified in People v. Beltran and Soliven.17 She
submits that these cases were applied by the CA in acquitting her co-accused Tugas, and being
similarly situated with him, she is also entitled to an acquittal. She claims that she had adduced
ample evidence to show that she had no hand in the preparation and publication of the
offending article, nor in the review, editing, examination, and approval of the articles published
in Gossip Tabloid.
_______________
11 Id., at pp. 7-8.
12 28 Phil. 599 (1914).
13 59 Phil. 356 (1934).
14 27 Phil. 347 (1914).
15 36 Phil. 243 (1917).
16 18 Phil. 1 (1910).
101
17 CA-G.R. CR No. 13561, November 6, 1995. 142

141 142 SUPREME COURT REPORTS ANNOTATED

VOL. 550, MARCH 28, 2008 141 Fermin vs. People

Fermin vs. People The rationale for the criminal culpability of those persons enumerated in Article 360 of the
Revised Penal Code19 was enunciated in U.S. v. Ocampo,20 to wit:

The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact,
damning. “According to the legal doctrines and jurisprudence of the
United States, the printer of a publication containing libelous
Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case. U.S.
v. Madrigal pertains to a criminal prosecution under Section 30 of Act No. 1519 for
matter is liable for the same by reason of his direct connection
fraudulently representing the weight or measure of anything to be greater or less than it is, therewith and his cognizance of the contents thereof. With
whereas U.S. v. Abad Santos refers to criminal responsibility under the Internal Revenue Law
(Act. No. 2339).
regard to a publication in which a libel is printed, not only is
the publisher but also all other persons who in any way
The other cases are more in point, but they serve to reinforce the conviction of, rather than participate in or have any connection with its publication are
absolve, petitioner. liable as publishers.”
In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which provides
that: “Every author, editor or proprietor of any book, newspaper, or serial publication is x x x x
chargeable with the publication of any words contained in any part of said book or number of
each newspaper or serial as fully as if he were the author of the same.” However, proof
adduced during the trial showed that accused was the manager of the publication without the In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273,
corresponding evidence that, as such, he was directly responsible for the writing, editing,
or publishing of the matter contained in the said libelous article.18
46 Am. St. Rep., 629), the question of the responsibility of the
manager or proprietor of a newspaper was discussed. The court
In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of said, among other things (pp. 782, 783):
the Revised Penal Code which includes the verb “publicar.” Thus, it was held that Article 360
includes not only the author or the person who causes the libelous matter to be published, but
also the person who prints or publishes it. “The question then recurs as to whether the manager or
proprietor of a newspaper can escape criminal responsibility
Based on these cases, therefore, proof of knowledge of and participation in the publication of
the offending article is not required, if the accused has been specifically identified as “author,
solely on the ground that the libelous article was published
editor, or proprietor” or “printer/publisher” of the publication, as petitioner and Tugas are in without his knowledge or consent. When a libel is published in
this case. a newspaper, such fact alone is sufficient evidence prima
facie to charge the manager or proprietor with the guilt of its
_______________ publication.
18 Supra note 12, at pp. 604-605. (Emphasis supplied.)

102
“The manager and proprietor of a newspaper, we think ought to
be held prima faciecriminally for whatever appears in his
paper; and it should be no defense that the publication was
made without his knowledge or consent, x x x
“One who furnishes the means for carrying on the publication
of a newspaper and entrusts its management to servants or
employ-
_______________
19 Art. 360. Persons responsible.—Any person who
shall publish, exhibit, or cause the publication or
exhibition of any defamation in writing or by similar means,
shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations
contained therein to the same extent as if he were the
author thereof. x x x (Emphasis supplied)
20 Supra note 16, at pp. 50-52.
143
VOL. 550, MARCH 28, 2008
Fermin vs. People
ees whom he selects and controls may be said to cause to be
published what actually appears, and should be held
responsible therefore, whether he was individually concerned
in the publication or not, x x x. Criminal responsibility for the
acts of an agent or servant in the course of his employment
necessarily implies some degree of guilt or delinquency on the
part of the publisher; x x x.
“We think, therefore, the mere fact that the libelous article was
published in the newspaper without the knowledge or consent
of its proprietor or manager is no defense to a criminal
prosecution against such proprietor or manager.”
In the case of Commonwealth vs. Morgan (107 Mass., 197),
this same question was considered and the court held that in the
criminal prosecution of a publisher of a newspaper in which a
libel appears, he is prima facie presumed to have published the
libel, and that the exclusion of an offer by the defendant to
prove that he never saw the libel and was not aware of its
publication until it was pointed out to him and that an apology
and retraction were afterwards published in the same paper,
gave him no ground for exception. In this same case, Mr.
Justice Colt, speaking for the court, said:
“It is the duty of the proprietor of a public paper, which may be
used for the publication of improper communications, to use
reasonable caution in the conduct of his business that no libels
be published.” (Wharton’s Criminal Law, secs. 1627, 1649; 1
Bishop’s Criminal Law, secs. 219, 221; People vs. Wilson, 64
143 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established by the
English courts. In the case of Rex vs. Walter (3 Esp., 21) Lord
Kenyon said that he was “clearly of the opinion that the
proprietor of a newspaper was answerable criminally as well as
103
civilly for the acts of his servants or agents for misconduct in
the management of the paper.”
This was also the opinion of Lord Hale, Mr. Justice Powell,
and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and Slander,
said:
“An information for libel will lie against the publisher of a
paper, although he did not know of its being put into the paper
and stopped the sale as soon as he discovered it.”
In the case of People vs. Clay (86 Ill., 147) the court held that –
144
144 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
“A person who makes a defamatory statement to the agent of a
newspaper for publication, is liable both civilly and criminally,
and his liability is shared by the agent and all others who aid in
publishing it.”
It is worthy to note that petitioner was not only the “publisher,” as shown by the editorial box
of Gossip Tabloid,21 but also its “president” and “chairperson” as she herself admitted on the
witness stand.22 She also testified that she handled the business aspect of the publication, and
assigns editors to take charge of everything. 23Obviously, petitioner had full control over the
publication of articles in the said tabloid. Her excuse of lack of knowledge, consent, or
participation in the release of the libelous article fails to persuade. Following our ruling
in Ocampo, petitioner’s criminal guilt should be affirmed, whether or not she had actual
knowledge and participation, having furnished the means of carrying on the publication of the
article purportedly prepared by the members of the Gossip Reportorial Team, who were
employees under her control and supervision.
Petitioner argues that Ocampo  has been clarified by the CA in People v. Beltran and
Soliven such that Maximo V. Soliven, as publisher of The Philippine Star, was acquitted by the
appellate court in view of the lack of evidence that he knew and approved the article written by
Luis D. Beltran about then President Corazon C. Aquino in the newspaper’s October 12, 1987
issue. Petitioner submits that People v. Beltran and Soliven serves as a guide to this Court
regarding the criminal liability of the publisher of the newspaper where a libelous article is
published. Put differently, it appears that petitioner wants this Court to follow the CA decision
and adopt it as judicial precedent under the principle of stare decisis.
_______________
21 Exhibit “A-8”; Records, p. 60.
22 TSN, May 2, 1996, p. 61.
23 Id., at p. 29.
145
VOL. 550, MARCH 28, 2008 145
Fermin vs. People
The doctrine of stare decisis, embodied in Article 824 of the Civil Code, is enunciated, thus:
“The doctrine of stare decisis enjoins adherence to judicial
precedents. It requires courts in a country to follow the rule
established in a decision of the Supreme Court thereof. That
decision becomes a judicial precedent to be followed in
subsequent cases by all courts in the land. The doctrine of stare
decisis is based on the principle that once a question of law has
been examined and decided, it should be deemed settled and
closed to further argument.”25 (Emphasis supplied)
Unfortunately, the Beltran decision attained finality at the level of the CA. Thus, if the CA
seemingly made a new pronouncement regarding the criminal liability of a publisher under
Article 360 of the Revised Penal Code, that ruling cannot bind this Court unless we purposely
adopt the same. Be that as it may, we find no compelling reason to revisit U.S. v. Ocampo; to
104
modify it would amount to judicial legislation. Article 360 is clear and unambiguous, and to   That is all for the witness, your Honor.
apply People v. Beltran and Soliven,which requires specific knowledge, participation, and
approval on the part of the publisher to be liable for the publication of a libelous article, would
be reading into the law an additional requirement that was not intended by it. COURT: Do we get it right from you, if you were acting as you were, you will not
allow the said publication of this same article or same stories?
In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot feign lack of
participation in the publication of the questioned article as was evident from his and A: If I were, if I was physically present, honestly I will because if you can see the
petitioner’s Joint Counter-Affidavit,26 and as gleaned from his testimony before the trial court, article, your Honor, it is according to our source, it is not a direct comment.
to wit:

COURT: So whether you are there or not, [the] same article leading to them (sic)
_______________ will still find its way to come out?

24 “Judicial decisions applying or interpreting the laws or the A: Yes, your honor.27
constitution shall form part of the legal system of the Tugas’ testimony, in fact, confirms his actual participation in the preparation and publication of
Philippines.” the controversial article and his approval thereof as it was written. Moreover, his alibi, which
was considered meritorious by the CA, that he was confined at the Mother of Perpetual Help
Clinic in Angeles City, is unavailing, in view of the testimony of his attending physician that
25 Castillo v. Sandiganbayan, 427 Phil. 785, 793; 377 SCRA Tugas’ medical condition did not prevent him from performing his work, thus—
509, 515 (2002).
Q: How would you describe the condition of the patient on June 13, 1995?
26 Records, p. 17. 
A: He is in stable condition.
146
_______________

146 SUPREME COURT REPORTS ANNOTATED 27 Cross-examination of Bogs Tugas; TSN, March 11, 1996, pp. 36-37.

Fermin vs. People 147

WITNESS: As editor-in-chief, I have no participation in the writing of the VOL. 550, MARCH 28, 2008 147
questioned article and my only participation in the publication is the handling of the
physical lay-outing, indication and allocation of type-size of the body of the article, Fermin vs. People
before the same was printed and published in GOSSIP Tabloid.
Q: You said he was in severe pain, from your opinion, was that condition
Q: You do not deny the statements in this publication as executed by you in the sufficient to enable him to work?
counter-affidavit and sworn in before the City Prosecutor, is this correct?
A: Yes, in my opinion.28
A: Yes, that is correct.
Q: You said your impression of the patient was urethral colic and this was caused
ATTY. ALENTAJAN: by spasm?

105
A: Yes, sir. A: That is about 2 hours.

Q: When you say spasm, it is not sustained, it comes every now and then and Q: About 5:00 o’clock in the morning?
[intermittently], it is not sustained?
A: Yes, sir.
A: Yes, sir.
_______________
Q: Now you said he was in stable condition?
28 Direct examination of Dr. Richard U. Velez; TSN, March 19, 1996, pp. 7-8.
A: Yes, sir.
148
Q: That means that his ailment is not life-threatening?

148 SUPREME COURT REPORTS ANNOTATED

A: Correct.
Fermin vs. People
Q: In fact, visitors were allowed to see him?
Q: Who was his companion when you saw him?
A: Yes, sir.
A: He was boarding in my place.
Q: He can also write?
Q: So, you brought him to the hospital?
A: Yes, sir.
A: Both of us went to the hospital.
Q: He was allowed to [receive] friends?
Q: Which boarding house are you referring [to]? In Angeles City?
A: Yes, sir.
A: Yes, sir.
Q: According to you, he was able to work also, he is not totally incapacitated in
performing certain chores in the hospital room? Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-in-
chief of a newspaper tabloid?
A: No, sir.
A: Yes, sir.
Q: Now, prior to 7:10 o’clock in the morning of June 13, 1995, you did not see
Mr. Bogs Tugas? Q: And some of his work is done in your boarding house?

A: I saw him, he was admitted at 7:00 o’clock but I saw him before. A: I do not know about it.

Q: How long before 7:10 were you able to see him? Q: How did you know that he is working on his paper works in Quezon City? Did
you see him do that?

106
A: I only know he goes to Manila everyday. HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN NIYANG
ASUNTONG INIWAN DU’N NOON PA, NAKAPAG-ABROAD MAN SIYA, E,
PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA
Q: In your boarding house, you saw him read and write? MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN DU’N NG NGA
KABABAYAN NATING NILOKO NIYA, IN ONE WAY OR ANOTHER?... NAAALALA
A: Probably yes.29 PA BA NINYO ‘YUNG MGA MAMAHALING KALDERO NA IBINEBENTA NILA
NOON SA AMERIKA, DU’N SILA NAGKAPROBLEMA, MILYON-MILYON ANG
INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA PILIPINAS NOON!
But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas because
with his acquittal by the CA, we would run afoul of his constitutional right against double
jeopardy. The rest of the article, which continued to the entire second page of the tabloid, follows—

Anent the third and fourth issues, petitioner argues that the subject article in the June 14, 1995 “Mainit na pinag-uusapan ngayon ang iba’t ibang posibilidad
issue of Gossip Tabloid is not libelous, is covered by the mantle of press freedom, and is
merely in the nature of a fair and honest comment. We disagree.
na maaaring gawin ni Annabelle Rama Gutierrez para lang
hindi matuloy ang pag-aresto at pagkukulong sa kanya ng mga
The banner headlines of the offending article read: awtoridad kaugnay ng sintensiyang ipinapataw sa kanya ni
Manila-RTC Judge Rodolfo Palattao.
KUNG TOTOONG NAKATAKAS NA SI ANNABELLE
RAMA, IMPOSIBLENG SA STATES SIYA NAGPUNTA! Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang
sinumang nakapagtuturo kung saan talaga naroon ang ina ni
_______________ Ruffa Gutierrez na hindi pinayagang makapagpiyansa ng
Branch 33 para sa pansamantala niyang kalayaan.
29 Cross-examination of Bogs Tugas; TSN, March 19, 1996,
pp. 15-18. May mga nagpapalagay na sa pamamagitan ng tinatawag na
back-door exit, ang pag-alis ng bansa sa paraang hindi na
149 kailangan pang dumaan sa NAIA, ay nakaalis na si Annabelle
noon pang nakaraang Biyernes, June 9, patungong Amerika.
VOL. 550, MARCH 28, 2008 149
Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang
Fermin vs. People nagsabing napaka-imposibleng sa Amerika nagtungo si
Annabelle dahil doon man ay may mga nakahanda nang
MAS MALAKING HALAGA ANG NADISPALKO NILA awtoridad na handang magkulong kay Annabelle, sakaling
SA STATES, MAY MGA NAIWAN DING ASUNTO DU’N mapatunayang naroon nga siya.150
SI ANNABELLE!
150 SUPREME COURT REPORTS ANNOTATED
On the first page of the same issue of Gossip Tabloid, written in smaller but bold letters, are:

Fermin vs. People

107
“Hindi siya makapupunta sa Amerika dahil napakarami rin
niyang asuntong iniwan doon noon pa!
“Nag-abroad man siya, e pihadong hindi siya sa Amerika
nagtuloy dahil nakaabang na rin ang sangkatutak niyang
maniningil du’n ngayon!
“Sa Amerika pa kaya siya magtatago, samantalang ilang taon
na rin siyang inaabangan du’n ng mga kababayan nating niloko
niya, in one way or another?” simula ng source ng Gossip
Tabloid.
Niliwanag ng naturang source na ang dahilan ng biglaang pag-
uwi ng pamilya Gutierrez sa bansa ilang taon na ang
nakararaan ay may kinalaman sa malaking halagang hindi
nabayaran nina Eddie at Annabelle sa ilang kababayan natin sa
Amerika.
“Naaalala pa ba ninyo ‘yung mga kalderong ibinebenta noon
nina Eddie at Annabelle sa States?
“Mga mamahaling kaldero ‘yun, hindi basta-basta kaldero ang
ibinebenta nila du’n, kaya talagang ang ganda-ganda na sana
ng buhay nilang mag-anak du’n hanggang sa dumating ‘yung
point na sinisingil na sila nu’ng mismong kompanya ng
kaldero!
“Malaki ang halagang involved, milyon-milyon, kaya nu’ng
kinasuhan na sila, e kinailangan nilang umalis sa Amerika para
bumalik na dito.
“Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng
malaking problema kina Eddie at Annabelle, alam ba n’yo
yun?
“Ang ganda-ganda ng samahan nila nu’ng una sa Amerika,
yumaman sila nang dahil sa mga mamahaling kaldero na
ibinebenta nila, kaso, sumabit sina Eddie at Annabelle du’n sa
mismong company na pinagkukunan nila ng produkto!
“Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika
dahil sa mga kalderong ‘yun, e sumabit pa sila nang malaking
halaga sa mismong manufacturer nu’ng mga ibinebenta nilang
mamahaling kaldero!
“Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas
ang pamilya ni Eddie!
“Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi
nilang lumaking Pilipinong-Pilipino ang kanilang mga anak,
pero ang totoo, e, napakalaki ng problemang iniwan nila sa
Amerika!” mahabang simula ng source ng Gossip Tabloid.151
VOL. 550, MARCH 28, 2008 151
Fermin vs. People
Masamang-masama diumano ang loob ng mga Pilipinong
kinatalo roon nina Eddie at Annabelle, lalo na si Annabelle, na
bukod sa mataray na ay may kayabangan pa.
“Dati nang ganyan si Annabelle! Mataray siya na wala sa
lugar. Nu’ng nasa Amerika pa silang mag-anak, e, ‘yun din ang
madalas nilang pag-awayan du’n ni Eddie!
108
“Madalas silang magkagalit, kaya si Eddie, para lang
makapagpalipas ng mga sama niya ng loob, e, du’n nag-i-stay
sa bahay ng mga kaibigan niyang Pinoy!
“Grabe ang naging problema nila du’n, kaya wala silang choice
that time kung di ang umuwi na lang sa Pilipinas!
“Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi
basta-basta, milyunan ‘yon!
“Kaso ‘yung pinagbebentahan nila, ‘yung halagang dapat sana,
e, ibigay nila sa kompanya dahil porsiyentuhan lang naman sila
du’n, nagastos nila!
“Nawala ang pera, at ang balita nga sa States, e, si Annabelle
ang dahilan kung bakit nalubog sila noon sa utang sa States!
“Nag-casino pala si Annabelle! Grabe raw kung magpatalo
siya, kaya pati ‘yung kinita nila sa pagbebenta ng mamahaling
kaldero, e, natunaw!” sabi uli ng source ng Gossip Tabloid.
Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa
sa source ng Gossip Tabloid, kaya ngayong may asunto naman
si Annabelle dito sa Pilipinas ay napaka-imposibleng sa
Amerika pa rin siya tatakbo.
“Paano siya magpupunta du’n para tuluyan nang manirahan, e,
ang dami-dami ring Pinoy na naghihintay sa kanya du’n para
maningil sa kanya?
“Alam n’yo ba, bukod sa galit na galit na sa kanila ang mga
Pinoy na nandu’n, e, may mga nakaabang na ring asunto para
kay Annabelle.
“So, malabong sa Amerika pa siya tumuloy ngayong
napapabalitang nasa abroad siya dahil sa mga naghihintay na
kaso sa kanya du’n.
“Ang alam namin, e, sa Europe nagbabalak pumunta ang
pamilya ni Eddie.152
152 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
“Di ba’t ilang beses nang nagpapabalik-balik du’n sina Ruffa.
Noon pa, e, pinag-aralan na nina Eddie at Annabelle ang
posibilidad ng mga gagawin nila!
“Alam nila na hindi sila puwedeng mag-stay sa States dahil
kalat din ang asunto nila du’n, bukod pa sa napakaraming
Pinoy na huma-hunting sa kanila!
“Kaya kung totoong nakalusot na nga si Annabelle ngayon
para makatakas siya sa pagkakulong, imposibleng sa States
siya nagpunta!
“Mas malaking problema ang kailangan niyang harapin sa
States dahil sa perang nadispalko nila, bukod pa sa asuntong
iniwan nilang nakatiwangwang du’n!
“Naghahanap ng sakit ng katawan si Annabelle kung sa States
nga niya maisipang pumunta ngayon para lang malusutan si
Ligaya Santos at ang sintensiya sa kanya ni Judge Palattao!”
madiin pang pahayag ng mapagkakatiwalaang source
ng Gossip Tabloid.”30
109
A libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary; or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of
one who is dead.31 In determining whether a statement is defamatory, the words used are to be
construed in their entirety and should be taken in their plain and ordinary meaning as they
would naturally be understood by persons reading them, unless it appears that they were used
and understood in another sense.32
To say that the article, in its entirety, is not libelous disturbs one’s sensibilities; it would
certainly prick one’s conscience. There is evident imputation of the crime of malversation (that
the complainants converted for their personal use the money paid to them by fellow Filipinos
in America in their business of distributing high-end cookware); of vices or de-
_______________
30 Records, p. 59.
31 Revised Penal Code, Art. 353.
Notably, however, the complainants successfully refuted the imputations during the trial.
Complainants proved that they could return anytime to the United States of America after the
publication of the article,33 and that they remained on good terms with the manufacturing
company of the cookware.34 To the contrary, both petitioner and Tugas failed to adduce
evidence to show the truth of the allegations in the article despite the opportunity to do so.
Further worthy of mention is the admission of petitioner before the trial court that she had very
close association with then Congressman Golez and mayoralty candidate Joey Marquez, and
that she would use her skills as a writer to campaign for them. Complainant Eddie Gutierrez
ran against
_______________
33 Exhibits “E-4” to “E-8”; Records, pp. 75-76.
34 Testimony of Eddie Gutierrez; TSN, January 15, 1996, pp.
66-68, 85-87.

154
32 Novicio v. Aggabao, 463 Phil. 510, 516; 418 SCRA 138,
143 (2003).
154 SUPREME COURT REPORTS ANNOTATED
153
Fermin vs. People
VOL. 550, MARCH 28, 2008 153
then incumbent Golez for the congressional seat in Parañaque City. Petitioner testified in this
wise—
Fermin vs. People
Q: When you acted as writer during the campaign, as you said, for Joey Marquez
fects for being fugitives from the law (that complainants and their family returned to the and Golez, of course you did not give your services for free to these candidates,
Philippines to evade prosecution in America); and of being a wastrel (that Annabelle Rama were you paid?
Gutierrez lost the earnings from their business through irresponsible gambling in casinos). The
attribution was made publicly, considering that Gossip Tabloid had a nationwide circulation.
A: I was not paid, Sir.
The victims were identified and identifiable. More importantly, the article reeks of malice, as it
tends to cause the dishonor, discredit, or contempt of the complainants.
Q: You just wanted to help them, am I correct?
Petitioner claims that there was no malice on her part because, allegedly, the article was merely
a fair and honest comment on the fact that Annabelle Rama Gutierrez was issued a warrant of A: Yes, because they are my friends, Sir.
arrest for her conviction for estafa before then Judge Palattao’s court. She even cited as proof
of her lack of malice the purported absence of any ill will against complainants, as shown by
the article she wrote about complainants’ daughter Sharmaine Ruffa Gutierrez in the June 15, Q: And you wanted them to win the election, thru your being a writer, is that
1995 issue of the same tabloid where she expressed her sympathy and admiration for the latter. correct?

110
A: Yes, Sir.
Q: You were campaigning hard for Golez and Marquez, right?
A: Right, Sir.
Q: When you say hard, you wanted your candidates to win, is it not?
A: Yes, Sir.
Q: Who was the opponent of Joey Marquez at that time?
A: The former Mayor Olivares, Sir.
Q: How about the opponent of Congressman Golez?
A: One of them is Eddie Gutierrez, Sir.
Q: And the tandem of Marquez and Golez versus the tandem of Olivares and
Eddie Gutierrez, am I correct?
A: Actually, that was the situation at that time, Sir.
Q: Of course, the tandem of Joey Marquez was working hard to win over their
opponent, is it not?
A: Whatever their problems were, I am out.
Q: As a hard campaigner, you wanted your team to win over the other, is this
correct?
A: Yes, Sir.
Q: Of course you understand what PRO work is, it includes propaganda, is that
correct?
A: I am sorry I don’t accept PR work, Sir.155
VOL. 550, MARCH 28, 2008 155
Fermin vs. People
Q: Do you understand PRO work?
A: Yes, Sir, I know.
Q: In propaganda, for your side, you promote it as against the other, right?
A: Yes, Sir.35
It can be gleaned from her testimony that petitioner had the motive to make defamatory
imputations against complainants. Thus, petitioner cannot, by simply making a general denial,
convince us that there was no malice on her part. Verily, not only was there malice in law, the
article being malicious in itself, but there was also malice in fact, as there was motive to talk ill
against complainants during the electoral campaign.
Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of
the press. Although a wide latitude is given to critical utterances made against public officials
in the performance of their official duties, or against public figures on matters of public
interest, such criticism does not automatically fall within the ambit of constitutionally
protected speech. If the utterances are false, malicious or unrelated to a public officer’s
performance of his duties or irrelevant to matters of public interest involving public figures, the
same may give rise to criminal and civil liability. 36 While complainants are considered public
figures for being personalities in the entertainment business, media people, including gossip
and intrigue writers and commentators such as petitioner, do not have the unbridled license to
malign their honor and dignity by indiscriminately airing fabricated
_______________
35 Cross-examination of Cristinelli Fermin; TSN, May 2,
1996, pp. 54-59.
36 Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571,
October 19, 2004, 440 SCRA 541, 574.
156
156 SUPREME COURT REPORTS ANNOTATED
111

Fermin vs. People
and malicious comments, whether in broadcast media or in print, about their personal lives. 37
“We must however take this opportunity to likewise remind
media practitioners of the high ethical standards attached to
and demanded by their noble profession. The danger of an
unbridled irrational exercise of the right of free speech and
press, that is, in utter contempt of the rights of others and in
willful disregard of the cumbrous responsibilities inherent in it,
is the eventual self-destruction of the right and the regression
of human society into a veritable Hobbesian state of nature
where life is short, nasty and brutish. Therefore, to recognize
that there can be no absolute “unrestraint” in speech is to truly
comprehend the quintessence of freedom in the marketplace of
social thought and action, genuine freedom being that which is
limned by the freedom of others. If there is freedom of the
press, ought there not also be freedom from  the press? It is in
this sense that self-regulation as distinguished from self-
censorship becomes the ideal mean for, as Mr. Justice
Frankfurter has warned, “[W]ithout x x x a lively sense of
responsibility, a free press may readily become a powerful
instrument of injustice.
Lest we be misconstrued, this is not to diminish nor constrict
that space in which expression freely flourishes and operates.
For we have always strongly maintained, as we do now, that
freedom of expression is man’s birthright—constitutionally
protected and guaranteed, and that it has become the singular
role of the press to act as its “defensor fidei” in a democratic
society such as ours. But it is also worth keeping in mind
that the press is the servant, not the master, of the citizenry,
and its freedom does not carry with it an unrestricted hunting
license to prey on the ordinary citizen.”38
In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld.
_______________
37 Soriano v. Intermediate Appellate Court, No. L-72383,
November 9, 1988, 167 SCRA 222, 231 (1988).
38 Borjal v. Court of Appeals, 361 Phil. 1, 28; 301 SCRA 1,
31-32 (1999).
157
VOL. 550, MARCH 28, 2008 157
Fermin vs. People
With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008,
the Court issued Administrative Circular No. 08-2008, entitled Guidelines in the Observance
of a Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a
preference for the imposition of a fine rather than imprisonment, given the circumstances
attendant in the cases39 cited therein in which
_______________
39 “In Sazon v. Court of Appeals (325 Phil. 1053, 1068; 255
SCRA 692, 703 [1996]), the Court modified the penalty
imposed upon petitioner, an officer of a homeowners’
association, for the crime of libel from imprisonment and fine
in the amount of P200.00, to fine only of P3,000.00, with
subsidiary imprisonment in case of insolvency, for the reason
that he wrote the libelous article merely to defend his honor
against the malicious messages that earlier circulated around
112
the subdivision, which he thought was the handiwork of the
private complainant.
In Mari v. Court of Appeals (388 Phil. 269, 279; 332 SCRA
475, 483 [2000]), in which the crime involved is slander by
deed, the Court modified the penalty imposed on petitioner, an
ordinary government employee, from imprisonment to a fine of
P1,000.00, with subsidiary imprisonment in case of insolvency,
on the ground that the latter committed the offense in the heat
of anger and in reaction to a perceived provocation.
In Brillante v. Court of Appeals (G.R. Nos. 118757 & 121571,
November 11, 2005, 474 SCRA 480, 484), the Court deleted
the penalty of imprisonment imposed upon petitioner, a local
politician, but maintained the penalty of fine of P4,000.00, with
subsidiary imprisonment in case of insolvency, in each of the
five (5) cases of libel, on the ground that the intensely feverish
passions evoked during the election period in 1988 must have
agitated petitioner into writing his open letter, and that
incomplete privileged communication should be appreciated in
favor of petitioner, especially considering the wide latitude
traditionally given to defamatory utterances against public
officials in connection with or relevant to their performance of
official duties or against public figures in relation to matters of
public interest involving them.
In Buatis, Jr. v. People (G.R No. 142509, March 24, 2006, 485
SCRA 275, 292), the Court opted to impose upon petitioner, a
lawyer,
158
158 SUPREME COURT REPORTS ANNOTATED
Fermin vs. People
only a fine was imposed by this Court on those convicted of libel. It also states that, if the
penalty imposed is merely a fine but the convict is unable to pay the same, the Revised Penal
Code provisions on subsidiary imprisonment should apply.
However, the Circular likewise allows the court, in the exercise of sound discretion, the option
to impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate
the seriousness of the offense, work violence on the social order, or otherwise be contrary to
the imperatives of justice.
In the case at bench, the Court considers the public’s speculations as to the whereabouts of
Annabelle Rama Gutierrez with the issuance of the warrant of arrest after her initial conviction
for estafa. Petitioner fueled these speculations through her article. However, her article went
overboard and exceeded the bounds of fair comment. This warrants her conviction.
Nonetheless, in light of the relatively wide latitude given to utterances against public figures
such as private complainants, and consonant with Administrative Circular No. 08-2008, the
Court deems it proper to modify the penalty of imprisonment to a fine in the amount of
P6,000.00, with subsidiary imprisonment in case of insolvency, in each case. But the award of
moral damages for each of the private complainants in the amount of P500,000.00, as ordered
by the trial court, should be restored on account of the serious anxiety and the wounded
feelings suffered by complainants from the libelous article, particularly taking into account the
fact that petitioner and the private complainants were on relatively good terms with each other,
and complainants gave no cause or offense which could have provoked the malicious
publication.
_______________
the penalty of fine only for the crime of libel considering that it
was his first offense and he was motivated purely by his belief
that he was merely exercising a civic or moral duty to his client
when he wrote the defamatory letter to private complainant.”
159
VOL. 550, MARCH 28, 2008 159
Fermin vs. People
113
WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR
No. 20890 is AFFIRMED with the MODIFICATION that in lieu of imprisonment, petitioner
Cristinelli S. Fermin is sentenced to pay a fine in the amount of P6,000.00, with subsidiary
imprisonment in case of insolvency, in each case. The award of moral damages, in the amount
of P300,000.00 each in favor of complainants Annabelle Rama Gutierrez and Eduardo
Gutierrez, is increased to P500,000.00. Costs against petitioner.

SO ORDERED.

Austria-Martinez (Actg. Chairperson), Tinga,** Chico-Nazario and Reyes, JJ.,concur.

Judgment affirmed with modification.

Notes.—Reliance on the rule of privileged communication in a suit for malicious prosecution

is misplaced, such defense being peculiar to actions for libel. (Lao vs. Court of Appeals, 271
SCRA 477 [1997])

The filing by a dismissed employee of a criminal action for libel during the pendency of the
illegal dismissal case does not constitute forum-shopping. (Equitable Banking Corporation vs.
National Labor Relations Commission, 273 SCRA 352 [1997])

U.S. Supreme Court

Miller v. California, 413 U.S. 15 (1973)

Miller v. California

No. 70-73

Argued January 18-19, 1972

Reargued November 7, 1972

Decided June 21, 1973

413 U.S. 15

114
APPEAL FROM THE APPELLATE DEPARTMENT,
SUPERIOR COURT
OF CALIFORNIA, COUNTY OF ORANGE
Syllabus
Appellant was convicted of mailing unsolicited sexually
explicit material in violation of a California statute that
approximately incorporated the obscenity test
formulated in Memoirs v. Massachusetts, 383 U. S.
413,  383 U. S. 418 (plurality opinion). The trial court
instructed the jury to evaluate the materials by the
contemporary community standards of California.
Appellant's conviction was affirmed on appeal. In lieu
of the obscenity criteria enunciated by
the Memoirsplurality, it is held:
1. Obscene material is not protected by the First
Amendment.  Roth v. United States, 354 U. S. 476,
reaffirmed. A work may be subject to state regulation
where that work, taken as a whole, appeals to the
prurient interest in sex; portrays, in a patently
offensive way, sexual conduct specifically defined by
the applicable state law; and, taken as a whole, does
not have serious literary, artistic, political, or scientific
value. Pp.  413 U. S. 23-24.
2. The basic guidelines for the trier of fact 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, Roth,
supra, at  354 U. S. 489, (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. If a
state obscenity law is thus limited, First Amendment
values are adequately protected by ultimate
independent appellate review of constitutional claims
when necessary. Pp.  413 U. S. 24-25.
3. The test of "utterly without redeeming social value"
articulated in Memoirs, supra, is rejected as a
constitutional standard. Pp.  413 U. S. 24-25.
4. The jury may measure the essentially factual issues
of prurient appeal and patent offensiveness by the
standard that prevails in the forum community, and
need not employ a "national standard." Pp.  413 U. S.
30-34.
Vacated and remanded. 
Page 413 U. S. 16
115
BURGER, C.J., delivered the opinion of the Court, in
which WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. DOUGLAS, J., filed a dissenting
opinion, post, p.  413 U. S. 37. BRENNAN, J., filed a
dissenting opinion, in which STEWART and MARSHALL,
JJ., joined, post, p.  413 U. S. 47.
MR. CHIEF JUSTICE BURGER delivered the opinion of
the Court.
This is one of a group of "obscenity-pornography"
cases being reviewed by the Court in a reexamination
of standards enunciated in earlier cases involving what
Mr. Justice Harlan called "the intractable obscenity
problem."  Interstate Circuit, Inc. v. Dallas, 390 U. S.
676,  390 U. S. 704(1968) (concurring and dissenting).
Appellant conducted a mass mailing campaign to
advertise the sale of illustrated books, euphemistically
called "adult" material. After a jury trial, he was
convicted of violating California Penal Code § 311.2(a),
a misdemeanor, by knowingly distributing obscene
matter, [Footnote 1] 
Page 413 U. S. 17
and the Appellate Department, Superior Court of
California, County of Orange, summarily affirmed the
judgment without opinion. Appellant's conviction was
specifically 
Page 413 U. S. 18
based on his conduct in causing five unsolicited
advertising brochures to be sent through the mail in
an envelope addressed to a restaurant in Newport
Beach, California. The envelope was opened by the
manager of the restaurant and his mother. They had
not requested the brochures; they complained to the
police.
The brochures advertise four books entitled
"Intercourse," "Man-Woman," "Sex Orgies Illustrated,"
and "An Illustrated History of Pornography," and a film
entitled "Marital Intercourse." While the brochures
contain some descriptive printed material, primarily
they consist 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 prominently displayed.
I
This case involves the application of a State's criminal
obscenity statute to a situation in which sexually
explicit materials have been thrust by aggressive sales
116
action upon unwilling recipients who had in no way
indicated any desire to receive such materials. This
Court has recognized that the States have a legitimate
interest in prohibiting dissemination or exhibition of
obscene material [Footnote 2] 
Page 413 U. S. 19
when the mode of dissemination carries with it a
significant danger of offending the sensibilities of
unwilling recipients or of exposure to
juveniles.  Stanley v. Georgia, 394 U. S. 557,  394 U. S.
567(1969); Ginsberg v. New York, 390 U. S. 629,  390 U.
S. 637-643 (1968); Interstate Circuit, Inc. v. Dallas,
supra, at  390 U. S. 690; Redrup v. New York, 386 U. S.
767,  386 U. S. 769 (1967); Jacobellis v. Ohio,378 U. S.
184,  378 U. S. 195 (1964).  See Rabe v.
Washington, 405 U. S. 313,  405 U. S. 317 (1972)
(BURGER, C.J., concurring); United States v. Reidel, 402
U. S. 351,  402 U. S. 360-362 (1971) (opinion of
MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S.
495,  343 U. S. 502 (1952); Breard v. Alexandria, 341 U.
S. 622,  341 U. S. 644 645 (1951); Kovacs v. Cooper, 336
U. S. 77,  336 U. S. 88-89 (1949); Prince v.
Massachusetts, 321 U. S. 158,  321 U. S. 169-170
(1944).  Cf. Butler v. Michigan, 352 U. S. 380,  352 U. S.
382-383 (1957); Public Utilities Comm'n v. Pollak, 343
U. S. 451,  343 U. S. 464-465 (1952) It is in this context
that we are called 
Page 413 U. S. 20
on to define the standards which must be used to
identify obscene material that a State may regulate
without infringing on the First Amendment as
applicable to the States through the Fourteenth
Amendment.
The dissent of MR. JUSTICE BRENNAN reviews the
background of the obscenity problem, but since the
Court now undertakes to formulate standards more
concrete than those in the past, it is useful for us to
focus on two of the landmark cases in the somewhat
tortured history of the Court's obscenity decisions.
In Roth v. United States, 354 U. S. 476 (1957), the Court
sustained a conviction under a federal statute
punishing the mailing of "obscene, lewd, lascivious or
filthy . . ." materials. The key to that holding was the
Court's rejection of the claim that obscene materials
were protected by the First Amendment. Five Justices
joined in the opinion stating:
"All ideas having even the slightest redeeming social
importance -- unorthodox ideas, controversial ideas,
even ideas hateful to the prevailing climate of opinion
-- have the full protection of the [First Amendment]
117
guaranties, unless excludable because they encroach
upon the limited area of more important interests. But
implicit in the history of the First Amendment is the
rejection of obscenity as utterly without redeeming
social importance. . . . This is the same judgment
expressed by this Court in Chaplinsky v. New
Hampshire, 315 U. S. 568,  315 U. S. 571-572: "
". . . There are certain well defined and narrowly
limited classes of speech, the prevention and
punishment of which have never been thought to
raise any Constitutional problem.  These include the
lewd and obscene. . . . It has been well observed that
such utterances are no essential part of any exposition
of ideas, and are of such slight social
Page 413 U. S. 21
value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social
interest in order and morality. . . ."
[Emphasis by Court in Roth opinion.]
"We hold that obscenity is not within the area of
constitutionally protected speech or press."
354 U.S. at  354 U. S. 48 85 (footnotes omitted).
Nine years later, in Memoirs v. Massachusetts, 383 U.
S. 413 (1966), the Court veered sharply away from
the Roth concept and, with only three Justices in the
plurality opinion, articulated a new test of obscenity.
The plurality held that, under the Roth definition,
"as elaborated in subsequent cases, three elements
must coalesce: it must be established that (a) the
dominant theme of the material, taken as a whole,
appeals to a prurient interest in sex; (b) the material is
patently offensive because it affronts contemporary
community standards relating to the description or
representation of sexual matters; and (c) the material
is utterly without redeeming social value."
Id. at  383 U. S. 418. The sharpness of the break
with Roth, represented by the third element of
the Memoirs test and emphasized by MR. JUSTICE
WHITE's dissent, id. at  383 U. S. 460-462, was further
underscored when the Memoirs plurality went on to
state:
"The Supreme Judicial Court erred in holding that a
book need not be 'unqualifiedly worthless before it
can be deemed obscene.' A book cannot be
proscribed unless it is found to be utterlywithout
redeeming social value."
Id. at  383 U. S. 419 (emphasis in original).
118
While Roth presumed "obscenity" to be "utterly
without redeeming social
importance," Memoirsrequired  at  390 U. S. 704-705 (Harlan, J., concurring and
Page 413 U. S. 22
that to prove obscenity it must be affirmatively
established that the material is "utterly without
redeeming social value." Thus, even as they repeated
the words of Roth, the Memoirs plurality produced a
drastically altered test that called on the prosecution
to prove a negative, i.e., that the material was
"utterly without redeeming social value" -- a burden
virtually impossible to discharge under our criminal
standards of proof. Such considerations caused Mr.
Justice Harlan to wonder if the "utterly without
redeeming social value" test had any meaning at
all.  See Memoirs v. Massachusetts, id. at  383 U. S.
459 (Harlan, J., dissenting).  See also id. at  383 U. S.
461(WHITE, J., dissenting); United States v. Groner, 479
F.2d 577, 579581 (CA5 1973).
Apart from the initial formulation in the Roth case, no
majority of the Court has at any given time been able
to agree on a standard to determine what constitutes
obscene, pornographic material subject to regulation
under the States' police power.  See, e.g., Redrup v.
New York, 386 U.S. at  386 U. S. 770-771. We have seen
"a variety of views among the members of the Court
unmatched in any other course of constitutional
adjudication."  Interstate Circuit, Inc. v. Dallas,390 U.S.
dissenting) (footnote omitted). [Footnote 3] This is not
remarkable, for in the area 
Page 413 U. S. 23
of freedom of speech and press the courts must
always remain sensitive to any infringement on
genuinely serious literary, artistic, political, or scientific
expression. This is an area in which there are few
eternal verities.
The case we now review was tried on the theory that
the California Penal Code § 311 approximately
incorporates the three-stage Memoirs test, supra. But
now the Memoirs test has been abandoned as
unworkable by its author, [Footnote 4] and no
Member of the Court today supports
the Memoirs formulation.
II
This much has been categorically settled by the Court,
that obscene material is unprotected by the First
Amendment.  Kois v. Wisconsin, 408 U. S.
229 (1972); United States v. Reidel, 402 U.S. at 402 U.
119
S. 354; Roth v. United States, supra, at  354 U. S. 485.
[Footnote 5] "The First and Fourteenth Amendments
have never been treated as absolutes [footnote
omitted]."  Breard v. Alexandria,341 U.S. at  341 U. S.
642, and cases cited.  See Times Film Corp. v.
Chicago, 365 U. S. 43,  365 U. S. 47-50 (1961); Joseph
Burstyn, Inc. v. Wilson, 343 U.S. at  343 U. S. 502. We
acknowledge, however, the inherent dangers of
undertaking to regulate any form of expression. State
statutes designed to regulate obscene materials must
be  of Memoirs v. Massachusetts,
Page 413 U. S. 24
carefully limited.  See Interstate Circuit, Inc. v. Dallas,
supra, at  390 U. S. 682-685. As a result, we now
confine the permissible scope of such regulation to
works which depict or describe sexual conduct. That
conduct must be specifically defined by the applicable
state law, as written or authoritatively construed.
[Footnote 6] A state offense must also be limited to
works which, taken as a whole, appeal to the prurient
interest in sex, which portray sexual conduct in a
patently offensive way, and which, taken as a whole,
do not have serious literary, artistic, political, or
scientific value.
The basic guidelines for the trier of fact 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, Kois v.
Wisconsin, supra, at  408 U. S. 230, quoting Roth v.
United States, supra, at 354 U. S. 489; (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. We do not adopt as a constitutional standard
the "utterly without redeeming social value" test
Page 413 U. S. 25
383 U.S. at  383 U. S. 419; that concept has never
commanded the adherence of more than three
Justices at one time. [Footnote 7]  See supra at  413 U.
S. 21. If a state law that regulates obscene material is
thus limited, as written or construed, the First
Amendment values applicable to the States through
the Fourteenth Amendment are adequately protected
by the ultimate power of appellate courts to conduct
an independent review of constitutional claims when
necessary.  See Kois v. Wisconsin, supra, at  408 U. S.
232; Memoirs v. Massachusetts, supra, at  383 U. S.
459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378
U.S. at 204 (Harlan, J., dissenting); New York Times Co.
v. Sullivan, 376 U. S. 254,  376 U. S. 284-285
120
(1964); Roth v. United States, supra, at  354 U. S. 497-
498 (Harlan, J., concurring and dissenting).
We emphasize that it is not our function to propose
regulatory schemes for the States. That must await
their concrete legislative efforts. It is possible,
however, to give a few plain examples of what a state
statute could define for regulation under part (b) of
the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions
of ultimate sexual acts, normal or perverted, actual or
simulated.
(b) Patently offensive representations or descriptions
of masturbation, excretory functions, and lewd
exhibition of the genitals.
Sex and nudity may not be exploited without limit by
films or pictures exhibited or sold in places of public
accommodation any more than live sex and nudity
can  Page 413 U. S. 27
Page 413 U. S. 26
be exhibited or sold without limit in such public places.
[Footnote 8] At a minimum, prurient, patently
offensive depiction or description of sexual conduct
must have serious literary, artistic, political, or
scientific value to merit First Amendment
protection.  See Kois v. Wisconsin, supra, at 408 U. S.
230-232; Roth v. United States, supra, at  354 U. S.
487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-
102 (1940). For example, medical books for the
education of physicians and related personnel
necessarily use graphic illustrations and descriptions
of human anatomy. In resolving the inevitably
sensitive questions of fact and law, we must continue
to rely on the jury system, accompanied by the
safeguards that judges, rules of evidence,
presumption of innocence, and other protective
features provide, as we do with rape, murder, and a
host of other offenses against society and its
individual members. [Footnote 9]
MR. JUSTICE BRENNAN, author of the opinions of the
Court, or the plurality opinions, in Roth v. United
States, supra; Jacobellis v. Ohio, supra; Ginzburg v.
United
States, 383 U. S. 463 (1966), Mishkin v. New York, 383
U. S. 502 (1966); and Memoirs v. Massachusetts,
supra, has abandoned his former position and now
maintains that no formulation of this Court, the
Congress, or the States can adequately distinguish
obscene material unprotected by the First
121
Amendment from protected expression, Paris Adult
Theatre I v. Slaton, post, p.  413 U. S. 73 (BRENNAN, J.,
dissenting). Paradoxically, MR. JUSTICE BRENNAN
indicates that suppression of unprotected obscene
material is permissible to avoid exposure to
unconsenting adults, as in this case, and to juveniles,
although he gives no indication of how the division
between protected and nonprotected materials may
be drawn with greater precision for these purposes
than for regulation of commercial exposure to
consenting adults only. Nor does he indicate where in
the Constitution he finds the authority to distinguish
between a willing "adult" one month past the state law
age of majority and a willing "juvenile" one month
younger.
Under the holdings announced today, no one will be
subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or
describe patently offensive "hard core" sexual conduct
specifically defined by the regulating state law, as
written or construed. We are satisfied that these
specific prerequisites will provide fair notice to a
dealer in such materials that his public and
commercial activities may bring prosecution.  See Roth
v. United States, supra, at  354 U. S. 491-492.  Cf.
Ginsberg v. New York, 390 U.S. at  390 U. S. 643.
[Footnote 10] If 
Page 413 U. S. 28
the inability to define regulated materials with
ultimate, god-like precision altogether removes the
power of the States or the Congress to regulate, then
"hard core" pornography may be exposed without
limit to the juvenile, the passerby, and the consenting
adult alike, as, indeed, MR. JUSTICE DOUGLAS
contends. As to MR. JUSTICE DOUGLAS' position, see
United States v. Thirty-seven Photographs, 402 U. S.
363,  402 U. S. 379-380 (1971) (Black, J., joined by
DOUGLAS, J., dissenting); Ginzburg v. United States,
supra, at  383 U. S. 476,  383 U. S. 491-492 (Black, J.,
and DOUGLAS, J., dissenting); Jacobellis v. Ohio,
supra, at  378 U. S. 196 (Black, J., joined by DOUGLAS,
J., concurring); Roth, supra, at  354 U. S. 508-514
(DOUGLAS, J., dissenting). In this belief, however, MR.
JUSTICE DOUGLAS now stands alone.
MR. JUSTICE BRENNAN also emphasizes "institutional
stress" in justification of his change of view. Noting
that "[t]he number of obscenity cases on our docket
gives ample testimony to the burden that has been
placed upon this Court," he quite rightly remarks that
the examination of contested materials "is hardly a
source of edification to the members of this
Court."  Paris Adult
Page 413 U. S. 29
122
Theatre I v. Slaton, post, at  413 U. S. 92,  413 U. S. 93.
He also notes, and we agree, that "uncertainty of the
standards creates a continuing source of tension
between state and federal courts. . . ."
"The problem is . . . that one cannot say with certainty
that material is obscene until at least five members of
this Court, applying inevitably obscure standards, have
pronounced it so."
Id. at  413 U. S. 93,  413 U. S. 92.
It is certainly true that the absence, since Roth, of a
single majority view of this Court as to proper
standards for testing obscenity has placed a strain on
both state and federal courts. But today, for the first
time since Roth was decided in 1957, a majority of this
Court has agreed on concrete guidelines to isolate
"hard core" pornography from expression protected
by the First Amendment. Now we may abandon the
casual practice of Redrup v. New York, 386 U. S.
767(1967), and attempt to provide positive guidance to
federal and state courts alike.
This may not be an easy road, free from difficulty. But
no amount of "fatigue" should lead us to adopt a
convenient "institutional" rationale -- an absolutist,
"anything goes" view of the First Amendment --
because it will lighten our burdens. [Footnote 11]
"Such an abnegation of judicial supervision in this field
would be inconsistent with our duty to uphold the
constitutional guarantees."  Jacobellis v. Ohio,
supra, at  378 U. S. 187-188 (opinion of BRENNAN, J.).
Nor should we remedy "tension between state and
federal courts" by arbitrarily depriving the States of a
power reserved to them under the Constitution, a
power which they have enjoyed and exercised
continuously from before the adoption of the First
Amendment to this day.  See Roth v. United States,
supra, at  354 U. S. 482-485.
"Our duty admits of no 'substitute for facing up 
Page 413 U. S. 30
to the tough individual problems of constitutional
judgment involved in every obscenity case.' [Roth v.
United States, supra, at  354 U. S. 498]; see Manual
Enterprises, Inc. v. Day, 370 U. S. 478,  370 U. S.
488 (opinion of Harlan, J.) [footnote omitted]."
Jacobellis v. Ohio, supra, at  378 U. S. 188 (opinion of
BRENNAN, J.).
III
Under a National Constitution, fundamental First
Amendment limitations on the powers of the States
123
do not vary from community to community, but this
does not mean that there are, or should or can be,
fixed, uniform national standards of precisely what
appeals to the "prurient interest" or is "patently
offensive." These are essentially questions of fact, and
our Nation is simply too big and too diverse for this
Court to reasonably expect that such standards could
be articulated for all 50 States in a single formulation,
even assuming the prerequisite consensus exists.
When triers of fact are asked to decide whether "the
average person, applying contemporary community
standards" would consider certain materials
"prurient," it would be unrealistic to require that the
answer be based on some abstract formulation. The
adversary system, with lay jurors as the usual ultimate
factfinders in criminal prosecutions, has historically
permitted triers of fact to draw on the standards of
their community, guided always by limiting
instructions on the law. To require a State to structure
obscenity proceedings around evidence of
a national "community standard" would be an exercise
in futility.
As noted before, this case was tried on the theory that
the California obscenity statute sought to incorporate
the tripartite test of Memoirs. This, a "national"
standard of First Amendment protection enumerated
by a plurality of this Court, was correctly regarded at
the time of trial as limiting state prosecution under the
controlling case 
Page 413 U. S. 31
law. The jury, however, was explicitly instructed that,
in determining whether the "dominant theme of the
material as a whole . . . appeals to the prurient
interest," and, in determining whether the material
"goes substantially beyond customary limits of candor
and affronts contemporary community standards of
decency," it was to apply "contemporary community
standards of the State of California."
During the trial, both the prosecution and the defense
assumed that the relevant "community standards" in
making the factual determination of obscenity were
those of the State of California, not some hypothetical
standard of the entire United States of America.
Defense counsel at trial never objected to the
testimony of the State's expert on community
standards [Footnote 12] or to the instructions of the
trial judge on "state-wide" standards. On appeal to the
Appellate Department, Superior Court of California,
County of Orange, appellant for the first time
contended that application of state, rather than
national, standards violated the First and Fourteenth
Amendments.
124
We conclude that neither the State's alleged failure to
offer evidence of "national standards," nor the trial
court's charge that the jury consider state community
standards, were constitutional errors. Nothing in the
First Amendment requires that a jury must consider
hypothetical and unascertainable "national standards"
when attempting to determine whether certain
materials are obscene as a matter  319-320 (Harlan, J., dissenting); United States v.
Page 413 U. S. 32
of fact. Mr. Chief Justice Warren pointedly commented
in his dissent in Jacobellis v. Ohio, supra, at 378 U. S.
200:
"It is my belief that, when the Court said in Roth that
obscenity is to be defined by reference to 'community
standards,' it meant community standards -- not a
national standard, as is sometimes argued. I believe
that there is no provable 'national standard.' . . . At all
events, this Court has not been able to enunciate one,
and it would be unreasonable to expect local courts to
divine one."
It is neither realistic nor constitutionally sound to read
the First Amendment as requiring that the people of
Maine or Mississippi accept public depiction of
conduct found tolerable in Las Vegas, or New York
City. [Footnote 13] 
Page 413 U. S. 33
See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970)
(BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at
434 (1970) (BURGER, C.J., dissenting); id. at 434-435
(Harlan, J., dissenting); Cain v. Kentucky, 397 U. S.
319 (1970) (BURGER, C.J., dissenting); id. at  397 U. S.
Groner, 479 F.2d at 581-583; O'Meara & Shaffer,
Obscenity in The Supreme Court: A Note on Jacobellis
v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964).  See also
Memoirs v. Massachusetts, 383 U.S. at  383 U. S.
458 (Harlan, J., dissenting); Jacobellis v. Ohio,
supra, at  378 U. S. 203-204 (Harlan, J.,
dissenting); Roth v. United States, supra, at  354 U. S.
505-506 (Harlan, J., concurring and dissenting). People
in different States vary in their tastes and attitudes,
and this diversity is not to be strangled by the
absolutism of imposed uniformity. As the Court made
clear in Mishkin v. New York, 383 U.S. at  383 U. S. 508-
509, the primary concern with requiring a jury to apply
the standard of "the average person, applying
contemporary community standards" is to be certain
that, so far as material is not aimed at a deviant group,
it will be judged by its impact on an average person,
rather than a particularly susceptible or sensitive
person -- or indeed a totally insensitive one.  See Roth
v. United States, supra, at  354 U. S. 489.  Cf.the now
125
discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B.
360. We hold that the requirement that the jury
evaluate the materials with reference to
"contemporary 
Page 413 U. S. 34
standards of the State of California" serves this
protective purpose and is constitutionally adequate.
[Footnote 14]
IV
The dissenting Justices sound the alarm of repression.
But, in our view, to equate the free and robust
exchange of ideas and political debate with
commercial exploitation of obscene material demeans
the grand conception of the First Amendment and its
high purposes in the historic struggle for freedom. It is
a "misuse of the great guarantees of free speech and
free press. . . ." Breard v. Alexandria, 341 U.S. at  341
U. S. 645. The First Amendment protects works which,
taken as a whole, have serious literary, artistic,
political, or scientific value, regardless of whether the
government or a majority of the people approve of the
ideas these works represent.
"The protection given speech and press was fashioned
to assure unfettered interchange of ideasfor the
bringing about of 
Page 413 U. S. 35
political and social changes desired by the people,"
Roth v. United States, supra, at  354 U. S.
484 (emphasis added).  See Kois v. Wisconsin, 408 U.S.
at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S.
at  310 U. S. 101-102. But the public portrayal of hard-
core sexual conduct for its own sake, and for the
ensuing commercial gain, is a different matter.
[Footnote 15]
There is no evidence, empirical or historical, that the
stern 19th century American censorship of public
distribution and display of material relating to sex, see
Roth v. United States, supra, at  354 U. S. 482-485, in
any way limited or affected expression of serious
literary, artistic, political, or scientific ideas. On the
contrary, it is beyond any question that the era
following Thomas Jefferson to Theodore Roosevelt
was an "extraordinarily vigorous period" not just in
economics and politics, but in belles lettres and in "the
outlying fields of social and political philosophies."
[Footnote 16] We do not see the harsh hand 
126
Page 413 U. S. 36
of censorship of ideas -- good or bad, sound or
unsound -- and "repression" of political liberty lurking
in every state regulation of commercial exploitation of
human interest in sex.
MR. JUSTICE BRENNAN finds "it is hard to see how
state-ordered regimentation of our minds can ever be
forestalled."  Paris Adult Theatre I v. Slaton,
post, at  413 U. S. 110 (BRENNAN, J., dissenting). These
doleful anticipations assume that courts cannot
distinguish commerce in ideas, protected by the First
Amendment, from commercial exploitation of obscene
material. Moreover, state regulation of hard-core
pornography so as to make it unavailable to
nonadults, a regulation which MR. JUSTICE BRENNAN
finds constitutionally permissible, has all the elements
of "censorship" for adults; indeed even more rigid
enforcement techniques may be called for with such
dichotomy of regulation.  See Interstate Circuit, Inc. v.
Dallas, 390 U.S. at  390 U. S. 690. [Footnote 17] One
can concede that the "sexual revolution" of recent
years may have had useful byproducts in striking
layers of prudery from a subject long irrationally kept
from needed ventilation. But it does not follow that no
regulation of patently offensive "hard core" materials
is needed or permissible; civilized people do not allow
unregulated access to heroin because it is a derivative
of medicinal morphlne.
In sum, we (a) reaffirm the Roth holding that obscene
material is not protected by the First Amendment; (b)
hold that such material can be regulated by the States,
subject to the specific safeguards enunciated 
Page 413 U. S. 37
above, without a showing that the material is "utterly
without redeeming social value"; and (c) hold that
obscenity is to be determined by applying
"contemporary community standards," see Kois v.
Wisconsin, supra, at  408 U. S. 230, and Roth v. United
States, supra, at  354 U. S. 489, not "national
standards." The judgment of the Appellate
Department of the Superior Court, Orange County,
California, is vacated and the case remanded to that
court for further proceedings not inconsistent with the
First Amendment standards established by this
opinion.  See United States v. 12 200-ft. Reels of Film,
post at  413 U. S. 130 n. 7.
Vacated and remanded.
[Footnote 1]
127
At the time of the commission of the alleged offense,
which was prior to June 25, 1969, §§ 311.2(a) and 311
of the California Penal Code read in relevant part:
"§ 311.2 Sending or bringing into state for sale or
distribution; printing, exhibiting, distributing or
possessing within state"
"(a) Every person who knowingly: sends or causes to
be sent, or brings or causes to be brought, into this
state for sale or distribution, or in this state prepares,
publishes, prints, exhibits, distributes, or offers to
distribute, or has in his possession with intent to
distribute or to exhibit or offer to distribute, any
obscene matter is guilty of a misdemeanor. . . ."
"§ 311. Definitions"
"As used in this chapter: "
"(a) 'Obscene' means that to the average person,
applying contemporary standards, the predominant
appeal of the matter, taken as a whole, is to prurient
interest, i.e., a shameful or morbid interest in nudity,
sex, or excretion, which goes substantially beyond
customary limits of candor in description or
representation of such matters and is matter which is
utterly without redeeming social importance."
"(b) 'Matter' means any book, magazine, newspaper,
or other printed or written material or any picture,
drawing, photograph, motion picture, or other
pictorial representation or any statue or other figure,
or any recording, transcription or mechanical,
chemical or electrical reproduction or any other
articles, equipment, machines or materials."
"(c) 'Person' means any individual, partnership, firm,
association, corporation, or other legal entity."
"(d) 'Distribute' means to transfer possession of,
whether with or without consideration."
"(e) 'Knowingly' means having knowledge that the
matter is obscene."
Section 311(e) of the California Penal Code, supra, was
amended on June 25, 1969, to read as follows:
"(e) 'Knowingly' means being aware of the character of
the matter."
Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite
appellant's contentions to the contrary, the record
indicates that the new § 311(e) was not applied ex post
facto to his case, but only the old § 311(e) as construed
by state decisions prior to the commission of the
alleged offense.  See People v. Pinkus, 256 Cal.App.2d
128
941, 948-950, 63 Cal.Rptr. 680, 685-686 (App. Dept.,
Superior Ct., Los Angeles, 1967); People v.
Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815,
821 (App.Dept., Superior Ct., San Diego, 1966).  Cf.
Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did
§ 311.2, supra, as applied, create any "direct,
immediate burden on the performance of the postal
functions," or infringe on congressional commerce
powers under Art. I, § 8, cl. 3.  Roth v. United
States, 354 U. S. 476,  354 U. S. 494 (1957),
quoting Railway Mail Assn. v. Corsi, 326 U. S. 88,  326
U. S. 96 (1945).  See also Mishkin v. New York, 383 U. S.
502,  383 U. S. 506 (1966); Smith v. California,361 U. S.
147,  361 U. S. 150-152 (1959).
[Footnote 2]
This Court has defined "obscene material" as "material
which deals with sex in a manner appealing to
prurient interest," Roth v. United States, supra, at  354
U. S. 487, but the Rothdefinition does not reflect the
precise meaning of "obscene" as traditionally used in
the English language. Derived from the
Latin obscaenus ob, to, plus caenum, filth, "obscene" is
defined in the Webster's Third New International
Dictionary (Unabridged 1969) as
"1a: disgusting to the senses . . . b: grossly repugnant
to the generally accepted notions of what is
appropriate . . . 2: offensive or revolting as countering
or violating some ideal or principle."
The Oxford English Dictionary (1933 ed.) gives a similar
definition, "[o]ffensive to the senses, or to taste or
refinement; disgusting, repulsive, filthy, foul,
abominable, loathsome."
The material we are discussing in this case is more
accurately defined as "pornography" or "pornographic
material." "Pornography" derives from the Greek
(porne, harlot, and graphos, writing). The word now
means
"1: a description of prostitutes or prostitution 2: a
depiction (as in writing or painting) of licentiousness or
lewdness: a portrayal of erotic behavior designed to
cause sexual excitement."
Webster's Third New International
Dictionary, supra. Pornographic material which is
obscene forms a sub-group of all "obscene"
expression, but not the whole, at least as the word
"obscene" is now used in our language. We note,
therefore, that the words "obscene material," as used
in this case, have a specific judicial meaning which
derives from the Roth case, i.e., obscene material
"which deals with sex."  Roth, supra, at  354 U. S.
129
487.  See also ALI Model Penal Code § 251.4(1)
"Obscene Defined." (Official Draft 1962.)
[Footnote 3]
In the absence of a majority view, this Court was
compelled to embark on the practice of summarily
reversing convictions for the dissemination of
materials that, at least five members of the Court,
applying their separate tests, found to be protected by
the First Amendment. Redrup v. New York, 386 U. S.
767 (1967). Thirty-one cases have been decided in this
manner. Beyond the necessity of circumstances,
however, no justification has ever been offered in
support of the Redrup "policy."  See Walker v.
Ohio, 398 U.S. at  398 U. S. 434-435 (1970) (dissenting
opinions of BURGER, C.J., and Harlan, J.).
The Redrup procedure has cast us in the role of an
unreviewable board of censorship for the 50 States,
subjectively judging each piece of material brought
before us.
[Footnote 4]
See the dissenting opinion of MR. JUSTICE BRENNAN
in Paris Adult Theatre I v. Slaton, post, p.  413 U. S. 73.
[Footnote 5]
As Mr. Chief Justice Warren stated, dissenting,
in Jacobellis v. Ohio, 378 U. S. 184,  378 U. S. 200(1964):
"For all the sound and fury that the Roth test has
generated, it has not been proved unsound, and I
believe that we should try to live with it -- at least until
a more satisfactory definition is evolved. No
government -- be it federal, state, or local -- should be
forced to choose between repressing all material,
including that within the realm of decency, and
allowing unrestrained license to publish any material,
no matter how vile. There must be a rule of reason in
this as in other areas of the law, and we have
attempted in the Roth case to provide such a rule."
[Footnote 6]
See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-
262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216,
1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-
129, as examples of state laws directed at depiction of
defined physical conduct, as opposed to expression.
Other state formulations could be equally valid in this
respect. In giving the Oregon and Hawaii statutes as
examples, we do not wish to be understood as
approving of them in all other respects nor as
establishing their limits as the extent of state power.
130
We do not hold, as MR. JUSTICE BRENNAN intimates,
that all States other than Oregon must now enact new
obscenity statutes. Other existing state statutes, as
construed heretofore or hereafter, may well be
adequate.  See United States v. 12 200-ft. Reel of Film,
post, at  413 U. S. 130n. 7.
[Footnote 7]
"A quotation from Voltaire in the flyleaf of a book will
not constitutionally redeem an otherwise obscene
publication. . . ."  Kois v. Wisconsin, 408 U. S. 229,  408
U. S. 231 (1972).  See Memoirs v. Massachusetts, 383
U. S. 413,  383 U. S. 461 (1966) (WHITE, J., dissenting).
We also reject, as a constitutional standard, the
ambiguous concept of "social importance."  See
id. at  383 U. S. 462(WHITE, J., dissenting).
[Footnote 8]
Although we are not presented here with the problem
of regulating lewd public conduct itself, the States
have greater power to regulate nonverbal, physical
conduct than to suppress depictions or descriptions of
the same behavior. In United States v. O'Brien, 391 U.
S. 367,  391 U. S. 377 (1968), a case not dealing with
obscenity, the Court held a State regulation of conduct
which itself embodied both speech and nonspeech
elements to be
"sufficiently justified if . . . it furthers an important or
substantial governmental interest; if the governmental
interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is
essential to the furtherance of that interest."
See California v. LaRue, 409 U. S. 109,  409 U. S. 117-
118 (1972).
[Footnote 9]
The mere fact juries may reach different conclusions
as to the same material does not mean that
constitutional rights are abridged. As this Court
observed in Roth v. United States, 354 U.S. at 354 U. S.
492 n. 30,
"it is common experience that different juries may
reach different results under any criminal statute. That
is one of the consequences we accept under our jury
system.  Cf. Dunlop v. United States, 165 U. S.
486,  165 U. S. 499-500."
[Footnote 10]
As MR. JUSTICE BRENNAN stated for the Court in Roth
v. United States, supra at  354 U. S. 491-492:
131
"Many decisions have recognized that these terms of 497; Fox v. Washington, 236 U. S. 273; Nash v. United
obscenity statutes are not precise. [Footnote omitted.] States, 229 U. S. 373."
This Court, however, has consistently held that lack of
precision is not itself offensive to the requirements of [Footnote 11]
due process. '. . . [T]he Constitution does not require
impossible standards;' all that is required is that the We must note, in addition, that any assumption
language 'conveys sufficiently definite warning as to concerning the relative burdens of the past and the
the proscribed conduct when measured by common probable burden under the standards now adopted is
understanding and practices. . . .'  United States v. pure speculation.
Petrillo, 332 U. S. 1,  332 U. S. 7-8. These words,
[Footnote 12]
applied according to the proper standard for judging
obscenity, already discussed, give adequate warning
The record simply does not support appellant's
of the conduct proscribed and mark"
contention, belatedly raised on appeal, that the State's
expert was unqualified to give evidence on California
". . . boundaries sufficiently distinct for judges and
"community standards." The expert, a police officer
juries fairly to administer the law. . . . That there may
with many years of specialization in obscenity
be marginal cases in which it is difficult to determine
offenses, had conducted an extensive state-wide
the side of the line on which a particular fact situation
survey and had given expert evidence on 26 occasions
falls is no sufficient reason to hold the language too
in the year prior to this trial. Allowing such expert
ambiguous to define a criminal offense. . . ."
testimony was certainly not constitutional error.  Cf.
"Id. at  332 U. S. 7.  See also United States v. United States v. Augenblick, 393 U. S. 348,  393 U. S.
Harriss, 347 U. S. 612,  347 U. S. 624, n. 15; Boyce 356 (1969).
Motor Lines, Inc. v. United States, 342 U. S. 337,  342 U.
[Footnote 13]
S. 340; United States v. Ragen, 314 U. S. 513,  314 U. S.
523-524; United States v. Wurzbach, 280 U. S.
In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices
396; Hygrade Provision Co. v. Sherman, 266 U. S.
argued that application of "local" community
standards would run the risk of preventing

132
dissemination of materials in some places because
sellers would be unwilling to risk criminal conviction
by testing variations in standards from place to
place.  Id. at  378 U. S. 193-195 (opinion of BRENNAN,
J., joined by Goldberg, J.). The use of "national"
standards, however, necessarily implies that materials
found tolerable in some places, but not under the
"national" criteria, will nevertheless be unavailable
where they are acceptable. Thus, in terms of danger to
free expression, the potential for suppression seems
at least as great in the application of a single
nationwide standard as in allowing distribution in
accordance with local tastes, a point which Mr. Justice
Harlan often emphasized.  See Roth v. United
States, 354 U.S. at  354 U. S. 506.
Appellant also argues that adherence to a "national
standard" is necessary "in order to avoid
unconscionable burdens on the free flow of interstate
commerce." As noted supra at  413 U. S. 18 n. 1, the
application of domestic state police powers in this
case did not intrude on any congressional powers
under Art. I, § 8, cl. 3, for there is no indication that
appellant's materials were ever distributed interstate.
Appellant's argument would appear without
substance in any event. Obscene material may be
validly regulated by a State in the exercise of its
traditional local power to protect the general welfare
of its population despite some possible incidental
effect on the flow of such materials across state
lines.  See, e.g., Head v. New Mexico Board, 374 U. S.
424(1963); Huron Portland Cement Co. v. Detroit, 362
U. S. 440 (1960); Breard v. Alexandria, 341 U. S.
622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S.
525 (1949); Southern Pacific Co. v. Arizona, 325 U. S.
761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S.
511 (1935); Sligh v. Kirkwood, 237 U. S. 52(1915).
[Footnote 14]
Appellant's jurisdictional statement contends that he
was subjected to "double jeopardy" because a Los
Angeles County trial judge dismissed, before trial, a
prior prosecution based on the same brochures, but
apparently alleging exposures at a different time in a
different setting. Appellant argues that, once material
has been found not to be obscene in one proceeding,
the State is "collaterally estopped" from ever alleging it
to be obscene in a different proceeding. It is not clear
from the record that appellant properly raised this
issue, better regarded as a question of procedural due
process than a "double jeopardy" claim, in the state
courts below. Appellant failed to address any portion
of his brief on the merits to this issue, and appellee
contends that the question was waived under
California law because it was improperly pleaded at
133
trial. Nor is it totally clear from the record before us
what collateral effect the pretrial dismissal might have
under state law. The dismissal was based, at least in
part, on a failure of the prosecution to present
affirmative evidence required by state law, evidence
which was apparently presented in this case.
Appellant's contention, therefore, is best left to the
California courts for further consideration on remand.
The issue is not, in any event, a proper subject for
appeal.  See Mishkin v. New York, 383 U. S. 502,  383 U.
S. 512-514 (1966).
[Footnote 15]
In the apt words of Mr. Chief Justice Warren, appellant
in this case was
"plainly engaged in the commercial exploitation of the
morbid and shameful craving for materials with
prurient effect. I believe that the State and Federal
Governments can constitutionally punish such
conduct. That is all that these cases present to us, and
that is all we need to decide."
Roth v. United States, supra, at  354 U. S.
496 (concurring opinion).
[Footnote 16]
See 2 V. Parrington, Main Currents in American
Thought ix et seq. (1930). As to the latter part of the
19th century, Parrington observed
"A new age had come and other dreams -- the age and
the dreams of a middle-class sovereignty. . . . From the
crude and vast romanticisms of that vigorous
sovereignty emerged eventually a spirit of realistic
criticism, seeking to evaluate the worth of this new
America, and discover if possible other philosophies to
take the place of those which had gone down in the
fierce battles of the Civil War."
Id. at 474.  Cf. 2 S. Morison, H. Commager & W.
Leuchtenburg, The Growth of the American Republic
197-233 (6th ed.1969); Paths of American Thought
123-166, 203-290 (A. Schlesinger & M. White ed.1963)
(articles of Fleming, Lerner, Morton & Lucia White, E.
Rostow, Samuelson, Kazin, Hofstadter); and H. Wish,
Society and Thought in Modern America 337-386
(1952).
[Footnote 17]
"[W]e have indicated . . . that, because of its strong
and abiding interest in youth, a State may regulate the
dissemination to juveniles of, and their access to,
material objectionable as to them, but which a State
134
clearly could not regulate as to adults.  Ginsberg v.
New York, . . . [390 U.S. 629 (1968)]."
Interstate Circuit, Inc. v. Dallas, 390 U. S. 676,  390 U. S.
690 (1968) (footnote omitted).
MR. JUSTICE DOUGLAS, dissenting.
I indefinable."  Id.at  378 U. S. 197.
Today we leave open the way for California [Footnote
2/1] to send a man to prison for distributing brochures
that advertise books and a movie under freshly
written standards defining obscenity which until today
is decision were never the part of any law.
The Court has worked hard to define obscenity and
concededly has failed. In Roth v. United States, 354 U.
S. 476, it ruled that "[o]bscene material is material
which deals with sex in a manner appealing to
prurient interest."  Id. at  354 U. S. 487. Obscenity, it
was said, was rejected by the First Amendment
because it is "utterly without redeeming  In Ginzburg v. United States, 383 U. S. 463, a publisher
Page 413 U. S. 38
social importance."  Id. at  354 U. S. 484. The presence
of a "prurient interest" was to be determined by
"contemporary community standards."  Id. at  354 U.
S. 489. That test, it has been said, could not be
determined by one standard here and another
standard there, Jacobellis v. Ohio, 378 U. S. 184,  378
U. S. 194, but "on the basis of a national
standard."  Id. at  378 U. S. 195. My Brother STEWART,
in Jacobellis, commented that the difficulty of the
Court in giving content to obscenity was that it was
"faced with the task of trying to define what may be
In Memoirs v. Massachusetts, 383 U. S. 413,  383 U. S.
418, the Roth test was elaborated to read as follows:
"[T]hree elements must coalesce: it must be
established that (a) the dominant theme of the
material taken as a whole appeals to a prurient
interest in sex; (b) the material is patently offensive
because it affronts contemporary community
standards relating to the description or representation
of sexual matters; and (c) the material is utterly
without redeeming social value."
was sent to prison, not for the kind of books and
periodicals he sold, but for the manner in which the
publications were advertised. The "leer of the
sensualist" was said to permeate the
advertisements.  Id. at  383 U. S. 468. The Court said,
135
"Where the purveyor's sole emphasis is on the
sexually provocative aspects of his publications, that
fact may be decisive in the determination of
obscenity."
Id. at  383 U. S. 470. As Mr. Justice Black said in dissent,
". . . Ginzburg . . . is now finally and authoritatively
condemned to serve five years in prison for
distributing printed matter about sex which neither
Ginzburg nor anyone else could possibly have known
to be criminal."
Id. at  383 U. S. 476. That observation by Mr. Justice
Black is underlined by the fact that
the Ginzburg decision was five to four. 
Page 413 U. S. 39
A further refinement was added by Ginsberg v. New
York, 390 U. S. 629,  390 U. S. 641, where the Court
held that "it was not irrational for the legislature to
find that exposure to material condemned by the
statute is harmful to minors."
But even those members of this Court who had
created the new and changing standards of
"obscenity" could not agree on their application. And
so we adopted a per curiam treatment of so-called
obscene publications that seemed to pass
constitutional muster under the several constitutional
tests which had been formulated.  See Redrup v. New
York, 386 U. S. 767. Some condemn it if its "dominant
tendency might be to deprave or corrupt' a reader."
[Footnote 2/2] Others look not to the content of the
book, but to whether it is advertised "`to appeal to the
erotic interests of customers.'" [Footnote 2/3] Some
condemn only "hard-core pornography," but even
then a true definition is lacking. It has indeed been
said of that definition, "I could never succeed in
[defining it] intelligibly," but "I know it when I see it."
[Footnote 2/4]
Today we would add a new three-pronged test:
"(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."
Those are the standards we ourselves have written
into the Constitution. [Footnote 2/5] Yet how under
these vague tests can 
136
Page 413 U. S. 40
we sustain convictions for the sale of an article prior to
the time when some court has declared it to be
obscene?
Today the Court retreats from the earlier formulations
of the constitutional test and undertakes to make new
definitions. This effort, like the earlier ones, is earnest
and well intentioned. The difficulty is that we do not
deal with constitutional terms, since "obscenity" is not
mentioned in the Constitution or Bill of Rights. And the
First Amendment makes no such exception from "the
press" which it undertakes to protect nor, as I have
said on other occasions, is an exception necessarily
implied, for there was no recognized exception to the
free press at the time the Bill of Rights was adopted
which treated "obscene" publications differently from
other types of papers, magazines, and books. So there
are no constitutional guidelines for deciding what is
and what is not "obscene." The Court is at large
because we deal with tastes and standards of
literature. What shocks me may  prosecution should be sustained. For no more vivid
Page 413 U. S. 41
be sustenance for my neighbor. What causes one
person to boil up in rage over one pamphlet or movie
may reflect only his neurosis, not shared by others.
We deal here with a regime of censorship which, if
adopted, should be done by constitutional
amendment after full debate by the people.
Obscenity cases usually generate tremendous
emotional outbursts. They have no business being in
the courts. If a constitutional amendment authorized
censorship, the censor would probably be an
administrative agency. Then criminal prosecutions
could follow as, if, and when publishers defied the
censor and sold their literature. Under that regime, a
publisher would know when he was on dangerous
ground. Under the present regime -- whether the old
standards or the new ones are used -- the criminal law
becomes a trap. A brand new test would put a
publisher behind bars under a new law improvised by
the courts after the publication. That was done
in Ginzburg, and has all the evils of an ex post
facto law.
My contention is that, until a civil proceeding has
placed a tract beyond the pale, no criminal
illustration of vague and uncertain laws could be
designed than those we have fashioned. As Mr. Justice
Harlan has said:
"The upshot of all this divergence in viewpoint is that
anyone who undertakes to examine the Court's
137
decisions since Roth which have held particular
material obscene or not obscene would find himself in
utter bewilderment."
Interstate Circuit, Inc. v. Dallas, 390 U. S. 676,  390 U. S.
707.
In Bouie v. City of Columbia, 378 U. S. 347, we upset a
conviction for remaining on property after being asked
to leave, while the only unlawful act charged by the
statute was entering. We held that the defendants had
received no "fair warning, at the time of their
conduct"  Page 413 U. S. 43
Page 413 U. S. 42
while on the property "that the act for which they now
stand convicted was rendered criminal" by the state
statute.  Id. at  378 U. S. 355. The same requirement of
"fair warning" is due here, as much as in Bouie. The
latter involved racial discrimination; the present case
involves rights earnestly urged as being protected by
the First Amendment. In any case -- certainly when
constitutional rights are concerned -- we should not
allow men to go to prison or be fined when they had
no "fair warning" that what they did was criminal
conduct.
II
If a specific book, play, paper, or motion picture has in
a civil proceeding been condemned as obscene and
review of that finding has been completed, and
thereafter a person publishes, shows, or displays that
particular book or film, then a vague law has been
made specific. There would remain the underlying
question whether the First Amendment allows an
implied exception in the case of obscenity. I do not
think it does, [Footnote 2/6] and my views 
on the issue have been stated over and over again.
[Footnote 2/7] But at least a criminal prosecution
brought at that juncture would not violate the time-
honored "void for vagueness" test. [Footnote 2/8]
No such protective procedure has been designed by
California in this case. Obscenity -- which even we
cannot define with precision -- is a hodge-podge. To
send
Page 413 U. S. 44
men to jail for violating standards they cannot
understand, construe, and apply is a monstrous thing
138
to do in a Nation dedicated to fair trials and due
process.
III
While the right to know is the corollary of the right to
speak or publish, no one can be forced by government
to listen to disclosure that he finds offensive. That was
the basis of my dissent in Public Utilities Comm'n v.
Pollak, 343 U. S. 451,  343 U. S. 467, where I protested
against making streetcar passengers a "captive"
audience. There is no "captive audience" problem in
these obscenity cases. No one is being compelled to
look or to listen. Those who enter newsstands or
bookstalls may be offended by what they see. But they
are not compelled by the State to frequent those
places; and it is only state or governmental action
against which the First Amendment, applicable to the
States by virtue of the Fourteenth, raises a ban.
The idea that the First Amendment permits
government to ban publications that are "offensive" to
some people puts an ominous gloss on freedom of the
press. That test would make it possible to ban any
paper or any journal or magazine in some benighted
place. The First Amendment was designed "to invite
dispute," to induce "a condition of unrest," to "create
dissatisfaction with conditions as they are," and even
to stir "people to anger."  Terminiello v. Chicago, 337
U. S. 1,  337 U. S. 4. The idea that the First Amendment
permits punishment for ideas that are "offensive" to
the particular judge or jury sitting in judgment is
astounding. No greater leveler of speech or literature
has ever been designed. To give the power to the
censor, as we do today, is to make a sharp and radical
break with the traditions of a free society. The First
Amendment was not fashioned as a vehicle for 
Page 413 U. S. 45
dispensing tranquilizers to the people. Its prime
function was to keep debate open to "offensive" as
well as to "staid" people. The tendency throughout
history has been to subdue the individual and to exalt
the power of government. The use of the standard
"offensive" gives authority to government that cuts the
very vitals out of the First Amendment. [Footnote 2/9]
As is intimated by the Court's opinion, the materials
before us may be garbage. But so is much of what is
said in political campaigns, in the daily press, on TV, or
over the radio. By reason of the First Amendment --
and solely because of it -- speakers and publishers
have not been threatened or subdued because their
thoughts and ideas may be "offensive" to some.
The standard "offensive" is unconstitutional in yet
another way. In Coates v. City of Cincinnati, 402 U. S.
139
611, we had before us a municipal ordinance that
made it a crime for three or more persons to
assemble on a street and conduct themselves "in a
manner annoying to persons  some people is difficult to square with constitutional
Page 413 U. S. 46
passing by." We struck it down, saying:
"If three or more people meet together on a sidewalk
or street corner, they must conduct themselves so as
not to annoy any police officer or other person who
should happen to pass by. In our opinion, this
ordinance is unconstitutionally vague because it
subjects the exercise of the right of assembly to an
unascertainable standard, and unconstitutionally
broad because it authorizes the punishment of
constitutionally protected conduct."
"Conduct that annoys some people does not annoy
others. Thus, the ordinance is vague not in the sense
that it requires a person to conform his conduct to an
imprecise but comprehensive normative standard, but
rather in the sense that no standard of conduct is
specified at all."
Id. at  402 U. S. 614.
How we can deny Ohio the convenience of punishing
people who "annoy" others and allow California power
to punish people who publish materials "offensive" to
requirements.
If there are to be restraints on what is obscene, then a
constitutional amendment should be the way of
achieving the end. There are societies where religion
and mathematics are the only free segments. It would
be a dark day for America if that were our destiny. But
the people can make it such if they choose to write
obscenity into the Constitution and define it.
We deal with highly emotional, not rational, questions.
To many, the Song of Solomon is obscene. I do not
think we, the judges, were ever given the
constitutional power to make definitions of obscenity.
If it is to be defined, let the people debate and decide
by a constitutional amendment what they want to ban
as obscene and what standards they want the
legislatures and the courts to apply. Perhaps the
people will decide that the path towards a mature,
integrated society requires
Page 413 U. S. 47
that all ideas competing for acceptance must have no
censor. Perhaps they will decide otherwise. Whatever
140
the choice, the courts will have some guidelines. Now
we have none except our own predilections.
[Footnote 2/1]
California defines "obscene matter" as
"matter, taken as a whole, the predominant appeal of
which to the average person, applying contemporary
standards, is to prurient interest, i.e., a shameful or
morbid interest in nudity, sex, or excretion; and is
matter which taken as a whole goes substantially
beyond customary limits of candor in description or
representation of such matters; and is matter which
taken as a whole is utterly without redeeming social
importance."
Calif. Penal Code § 311(a).
[Footnote 2/2]
Roth v. United States, 354 U. S. 476,  354 U. S.
502 (opinion of Harlan, J.).
[Footnote 2/3]
Ginzburg v. United States, 383 U. S. 463,  383 U. S. 467.
[Footnote 2/4]
Jacobellis v. Ohio, 378 U. S. 184,  378 U. S.
197 (STEWART, J., concurring).
[Footnote 2/5]
At the conclusion of a two-year study, the U.S.
Commission on Obscenity and Pornography
determined that the standards we have written
interfere with constitutionally protected materials:
"Society's attempts to legislate for adults in the area of
obscenity have not been successful. Present laws
prohibiting the consensual sale or distribution of
explicit sexual materials to adults are extremely
unsatisfactory in their practical application. The
Constitution permits material to be deemed 'obscene'
for adults only if, as a whole, it appeals to the
'prurient' interest of the average person, is 'patently
offensive' in light of 'community standards,' and lacks
'redeeming social value.' These vague and highly
subjective aesthetic, psychological and moral tests do
not provide meaningful guidance for law enforcement
officials, juries or courts. As a result, law is
inconsistently and sometimes erroneously applied,
and the distinctions made by courts between
prohibited and permissible materials often appear
indefensible. Errors in the application of the law and
uncertainty about its scope also cause interference
141
with the communication of constitutionally protected
materials."
Report of the Commission on Obscenity and
Pornography 53 (1970).
[Footnote 2/6]
It is said that "obscene" publications can be banned on
authority of restraints on communications incident to
decrees restraining unlawful business monopolies or
unlawful restraints of trade, Sugar Institute v. United
States, 297 U. S. 553,  297 U. S. 597, or
communications respecting the sale of spurious or
fraudulent securities.  Hall v. Geier-Jones Co.,242 U. S.
539,  242 U. S. 549; Caldwell v. Sioux Falls Stock Yards
Co., 242 U. S. 559,  242 U. S. 567; Merrick v. Halsey &
Co., 242 U. S. 568,  242 U. S. 584. The First Amendment
answer is that, whenever speech and conduct are
brigaded -- as they are when one shouts "Fire" in a
crowded theater -- speech can be outlawed. Mr. Justice
Black, writing for a unanimous Court in Giboney v.
Empire Storage Co., 336 U. S. 490, stated that labor
unions could be restrained from picketing a firm in
support of a secondary boycott which a State had
validly outlawed. Mr. Justice Black said:
"It rarely has been suggested that the constitutional
freedom for speech and press extends its immunity to
speech or writing used as an integral part of conduct
in violation of a valid criminal statute. We reject the
contention now."
Id. at  336 U. S. 498.
[Footnote 2/7]
See United States v. 12 200-ft. Reels of Film,
post, p.  413 U. S. 123; United States v. Orito,
post, p.  413 U. S. 139; Kois v. Wisconsin, 408 U. S.
229; Byrne v. Karalexis, 396 U. S. 976, 977; Ginsberg v.
New York, 390 U. S. 629,  390 U. S. 650; Jacobs v. New
York, 388 U. S. 431,  388 U. S. 436; Ginzburg v. United
States, 383 U. S. 463,  383 U. S. 482; Memoirs v.
Massachusetts, 383 U. S. 413,  383 U. S. 424; Bantam
Books, Inc. v. Sullivan, 372 U. S. 58,  372 U. S. 72; Times
Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 78; Smith
v. California, 361 U. S. 147,  361 U. S. 167; Kingsley
Pictures Corp. v. Regents, 360 U. S. 684,  360 U. S.
697; Roth v. United States, 354 U. S. 476,  354 U. S.
508; Kingsley Books, Inc. v. Brown, 354 U. S. 436,  354
U. S. 446; Superior Films, Inc. v. Department of
Education, 346 U. S. 587, 346 U. S. 588; Gelling v.
Texas, 343 U. S. 60.
[Footnote 2/8]
142
The Commission on Obscenity and Pornography has
advocated such a procedure:
"The Commission recommends the enactment, in all
jurisdictions which enact or retain provisions
prohibiting the dissemination of sexual materials to
adults or young persons, of legislation authorizing
prosecutors to obtain declaratory judgments as to
whether particular materials fall within existing legal
prohibitions. . . ."
"A declaratory judgment procedure . . . would permit
prosecutors to proceed civilly, rather than through the
criminal process, against suspected violations of
obscenity prohibition. If such civil procedures are
utilized, penalties would be imposed for violation of
the law only with respect to conduct occurring after a
civil declaration is obtained. The Commission believes
this course of action to be appropriate whenever there
is any existing doubt regarding the legal status of
materials; where other alternatives are available, the
criminal process should not ordinarily be invoked
against persons who might have reasonably believed,
in good faith, that the books or films they distributed
were entitled to constitutional protection, for the
threat of criminal sanctions might otherwise deter the
free distribution of constitutionally protected
material."
Report of the Commission on Obscenity and
Pornography 63 (1970).
[Footnote 2/9]
Obscenity law has had a capricious history:
"The white slave traffic was first exposed by W. T.
Stead in a magazine article, 'The Maiden Tribute.' The
English law did absolutely nothing to the profiteers in
vice, but put Stead in prison for a year for writing
about an indecent subject. When the law supplies no
definite standard of criminality, a judge, in deciding
what is indecent or profane, may consciously
disregard the sound test of present injury, and
proceeding upon an entirely different theory may
condemn the defendant because his words express
ideas which are thought liable to cause bad future
consequences. Thus, musical comedies enjoy almost
unbridled license, while a problem play is often
forbidden because opposed to our views of marriage.
In the same way, the law of blasphemy has been used
against Shelley's Queen Mab and the decorous
promulgation of pantheistic ideas on the ground that
to attack religion is to loosen the bonds of society and
endanger the state. This is simply a round-about
modern method to make heterodoxy in sex matters
and even in religion a crime."
143
Z. Chafee, Free Speech in the United States 151 (1942).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE
STEWART and MR. JUSTICE MARSHALL join, dissenting.
In my dissent in Paris Adult Theatre I v. Slaton,
post, p.  413 U. S. 73, decided this date, I noted that I
had no occasion to consider the extent of state power
to regulate the distribution of sexually oriented
material to juveniles or the offensive exposure of such
material to unconsenting adults. In the case before us,
appellant was convicted of distributing obscene
matter in violation of California Penal Code § 311.2, on
the basis of evidence that he had caused to be mailed
unsolicited brochures advertising various books and a
movie. I need not now decide whether a statute might
be drawn to impose, within the requirements of the
First Amendment, criminal penalties for the precise
conduct at issue here. For it is clear that, under my
dissent in Paris Adult Theatre I, the statute under
which the prosecution was brought is
unconstitutionally overbroad, and therefore invalid on
its face. *
"[T]he transcendent value to all society of
constitutionally protected expression is deemed to
justify allowing 'attacks on overly broad statutes with
no requirement that the person making the attack
demonstrate that his own conduct could not be
regulated by a statute drawn with the requisite narrow
specificity."
Gooding v. Wilson, 405 U. S. 518,  405 U. S. 521 (1972),
quoting 
Page 413 U. S. 48
from Dombrowski v. Pfister, 380 U. S. 479,  380 U. S.
486 (1965).  See also Baggett v. Bullitt, 377 U. S.
360,  377 U. S. 366 (1964); Coates v. City of
Cincinnati, 402 U. S. 611,  402 U. S.
616 (1971); id. at  402 U. S. 619-620 (WHITE, J.,
dissenting); United States v. Raines, 362 U. S. 17,  362
U. S. 21-22 (1960); NAACP v. Button, 371 U. S. 415,  371
U. S. 433 (1963). Since my view in Paris Adult Theatre
Irepresents a substantial departure from the course of
our prior decisions, and since the state courts have as
yet had no opportunity to consider whether a "readily
apparent construction suggests itself as a vehicle for
rehabilitating the [statute] in a single
prosecution," Dombrowski v. Pfister, supra, at  380 U.
S. 491, I would reverse the judgment of the Appellate
Department of the Superior Court and remand the
case for proceedings not inconsistent with this
opinion.  See Coates v. City of Cincinnati, supra, at  402
U. S. 616.
* Cal. Penal Code § 311.2(a) provides that
144
"Every person who knowingly: sends or causes to be
sent, or brings or causes to be brought, into this state No. L-69500. July 22, 1985.*
for sale or distribution, or in this state prepares,
publishes, prints, exhibits, distributes, or offers to
distribute, or has in his possession with intent to JOSE ANTONIO U. GONZALEZ
distribute or to exhibit or offer to distribute, any
obscene matter is guilty of a misdemeanor."
in behalf of MALAYA FILMS,
LINO BROCKA, JOSE F.
LACABA, and DULCE Q.
SAGUISAG,
petitioners, vs. CHAIRMAN
MARIA KALAW KATIGBAK,
GENERAL WILFREDO C.
ESTRADA (Ret.), and THE
BOARD OF REVIEW FOR
MOTION PICTURES AND
TELEVISION (BRMPT),
respondents.
Constitutional Law; Motion Pictures; Censorship is, in extreme cases, a sine qua non to the
meaningful exercise of the rights to free speech and press.—Censorship or previous restraint
certainly is not all there is to free speech or free press. If it were so, then such basic rights are
emasculated. It is, however, except in exceptional circumstances a sine qua non for the
meaningful exercise of such right. This is not to deny that equally basic is the other important

145
aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis
should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in
our jurisdiction. As early as 1909, in the case of United States v. Sedano, a prosecution  free speech and press guarantee of the United States Constitution: “All ideas
________________
* EN BANC.
718
718 SUPREME COURT REPORTS ANNOTATED 
Gonzales vs. Kalaw Katigbak
for libel, the Supreme Court of the Philippines already made clear that freedom of the press
consists in the right to print what one chooses without any previous license.
Same;  Same; The power of the Board of Review for Motion Pictures and Television (BRMPT)
is limited to the classification of films.—It is the opinion of this Court, therefore, that to avoid
an unconstitutional taint on its creation, the power of respondent Board is limited to the
classification of films. It can, to safeguard other constitutional objections, determine what
motion pictures are for general patronage and what may require either parental guidance or be
limited to adults only. That is to abide by the principle that freedom of expression is the rule
and restrictions the exemption. The power to exercise prior restraint is not to be presumed,
rather the presumption is against its validity.
Same;  Same; The test to determine whether a motion pictures exceeds the bounds of
permissible exercise of free speech and, therefore, should be censored, is the clear and danger
test.—The test, to repeat, to determine whether freedom of expression may be limited is the
clear and present danger of an evil of a substantive character that the State has a right to
prevent. Such danger must not only be clear but also present. There should be no doubt that
what is feared may be traced to the expression complained of. The causal connection must be
evident. Also, there must be reasonable apprehension about its imminence. The time element
cannot be ignored. Nor does it suffice if such danger be only probable. There is the
requirement of its being well-nigh inevitable. The basic postulate, therefore, as noted earlier, is
that where the movies, theatrical productions, radio scripts, television programs, and other such
media of expression are concerned—included as they are in freedom of expression—
censorship, especially so if an entire production is banned, is allowable only under the clearest
proof of a clear and present danger of a substantive evil to public safety, public morals, public
health or any other legitimate public interest. There is merit to the observation of Justice
Douglas that “every writer, actor, or producer, no matter what medium of expression he may
use, should be freed from the censor.”
Same; Same; The law frowns on obscenity.—The law, however, frowns on obscenity—and
rightly so. As categorically stated by Justice Brennan in Roth v. United States, speaking of the
 
719
VOL. 137, JULY 22, 1985  719 
Gonzales vs. Kalaw Katigbak
having even the slightest redeeming social importance—unorthodox ideas, controversial ideas,
even ideas hateful to the prevailing climate of opinion—have the full protection of the
guaranties, unless excludable because they encroach upon the limited area of more important
interests. But implicit in the history of the First Amendment is the rejection of obscenity as
utterly without redeeming social importance.” Such a view commends itself for approval.
Same; Same; There is difficulty in determining what is obscene.—There is, however, some
difficulty in determining what is obscene. There is persuasiveness to the approach followed in
Roth: “The early leading standard of obscenity allowed material to be judged merely by the
effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR
3 QB 360. Some American courts adopted this standard but later decisions have rejected it and
substituted this test: whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to prurient interest. The
Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible
persons, might well encompass material legitimately treating with sex, and so it must be
rejected as un-constitutionally restrictive of the freedoms of speech and press. On the other
hand, the substituted standard provides safeguards adequate to withstand the charge of
constitutional infirmity.”
Same; Same; Sex and obscenity are not synonymous.—It is quite understandable then why in
the Roth opinion, Justice Brennan took pains to emphasize that “sex and obscenity are not
synonymous.” Further: “Obscene material is material which deals with sex in a manner
appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is
not itself sufficient reason to deny material the constitutional protection of freedom of speech
and press. Sex, a great and mysterious motive force in human life, has indisputably been a
subject of absorbing interest to mankind through the ages; it is one of the vital problems of
human interest and public concern.”
Same; Same; Certiorari;  The BRMPT abused its discretion in classifying the movie “Kapit sa
Patalim” as “For Adults Only,” but there are not enough votes to maintain that such an abuse
can be considered grave. The classification serves as a warning that Kapit is not fit for the
young.—This being a certiorari petition, the question before the Court is whether or not there
was a grave abuse of discretion. That there was an abuse of discretion by respon-
720
146
720 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
dent Board is evident in the light of the difficulty and travail undergone by petitioners
before Kapit sa Patalim was classified as “For Adults Only,” without any deletion or cut.
Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This
Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough
votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not
lie. This conclusion finds support in this explanation of respondents in its Answer to the
amended petition: “The adult classification given the film serves as a warning to theater
operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes
in the picture were taken in a theater-club and a good portion of the film shots concentrated on
some women erotically dancing naked, or at least nearly naked, on the theater stage. Another
scene on that stage depicted the women kissing and caressing as lesbians. And toward the end
of the picture, there exists scenes of excessive violence attending the battle between a group of
robbers and the police. The vulnerable and imitative in the young audience will misunderstand
these scenes.” Further: “Respondents further stated in its answer that petitioner company has
an option to have the film reclassified to For-General-Patronage if it would agree to remove
the obscene scenes and pare down the violence in the film.” Petitioners, however, refused the
“For Adults Only” classification and instead, as noted at the outset, filed this suit for certiorari.
Same;  Same; Radio and Television; This ruling is limited to motion pictures. Television is
subject to a less liberal approach as it reaches its audience freely regardless of age.—All that
remains to be said is that the ruling is to be limited to the concept of obscenity applicable to
motion pictures. It is the consensus of this Court that where television is concerned, a less
liberal approach calls for observance. This is so because unlike motion pictures where the
patrons have to pay their way, television reaches every home where there is a set. Children
then will likely will be among the avid viewers of the programs therein shown. As was
observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law
to deal with the sexual fantasies of the adult population. It cannot be denied though that the
State as parens patriae is called upon to manifest an attitude of caring for the welfare of the
young.
PETITION for certiorari to review the decision of the Board of Review for Motion Pictures
and Television.
The facts are stated in the opinion of the Court.
721
VOL. 137, JULY 22, 1985
Gonzales vs. Kalaw Katigbak
     Irene R. Cortes,  Perfecto V Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.
     The Solicitor General for respondents.
FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a
persuasive ring to the invocation of the constitutional right to freedom of expression1 of an
artist—and for that matter a man of letters too—as the basis for a ruling on the scope of the
power of respondent Board of Review for Motion Pictures and Television and how it should be
exercised. The dispute between the parties has been narrowed down. The motion picture in
question, Kapit sa Patalim was classified “For Adults Only.” There is the further issue then,
also one of first impression, as to the proper test of what constitutes obscenity in view of the
objections raised. Thus the relevance of this constitutional command: “Arts and letters shall be
under the patronage of the State.”2
The principal petitioner is Jose Antonio U. Gonzalez,3 President of the Malaya Films, a movie
production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade.
The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw
Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also
named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to
exhibit the film Kapit sa Patalim under the classification “For Adults Only,” with certain
changes and deletions enumerated was granted. A motion for 
________________
1 The Constitution provides: “No law shall be passed abridging
the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress
of grievances.”
2 Article XV, Section 9, par. (2) reads in full: “Filipino culture
shall be preserved and developed for national identity. Arts and
721 letter shall be under the patronage of the State.”
147
3 The other petitioners are Lino Brocka, Jose F. Lacaba and 6 Answer, 9-10.
Dulce Q. Saguisag.
7 Ibid, 10.
722
723
722 SUPREME COURT REPORTS ANNOTATED
VOL. 137, JULY 22, 1985 723
Gonzales vs. Kalaw Katigbak
Gonzales vs. Kalaw Katigbak
reconsideration was filed by petitioners stating that the classification of the film “For Adults
Only” was without basis.4 Then on November 12, 1984, respondent Board released its
tion.”8 There was an answer to the amended petition filed on February 18, 1985. It was therein
decision: “Acting on the applicant’s Motion for Reconsideration dated 29 October 1984, the
asserted that the issue presented as to the previous deletions ordered by the Board as well as the
Board, after a review of the resolution of the sub-committee and an examination of the film,
statutory provisions for review of films and as to the requirement to submit the master negative
Resolves to affirm in toto the ruling of the subcommittee. Considering, however, certain vital
have been all rendered moot. It was also submitted that the standard of the law for classifying
deficiencies in the application, the Board further Resolves to direct the Chairman of the Board
films afford a practical and determinative yardstick for the exercise of judgment. For
to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied.”5 Hence
respondents, the question of the sufficiency of the standards remains the only question at issue.
this petition.

It would be unduly restrictive under the circumstances to limit the issue to one of the
This Court, in a resolution of January 12, 1985, required respondent to answer. In such
sufficiency of standards to guide respondent Board in the exercise of its power. Even if such
pleading submitted on January 21, 1985, as one of its special and affirmative defenses, it was
were the case, there is justification for an inquiry into the controlling standard to warrant the
alleged that the petition is moot as “respondent Board has revoked its questioned resolution,
classification of “For Adults Only.” This is especially so, when obscenity is the basis for any
replacing it with one immediately granting petitioner company a permit to exhibit the
alleged invasion of the right to the freedom of artistic and literary expression embraced in the
film Kapit without any deletion or cut [thus an] adjudication of the questions presented above
free speech and free press guarantees of the Constitution.
would be academic on the case.”6Further: “The modified resolution of the Board, of course,
classifies Kapit as for-adults-only, but the petition does not raise any issue as to the validity of
this classification. All that petitioners assail as arbitrary on the part of the Board’s action are 1. Motion pictures are important both as a medium for the communication of ideas and the
the deletions ordered in the film.”7 The prayer was for the dismissal of the petition. expression of the artistic impulse. Their effects on the perception by our people of issues and
public officials or public figures as well as the prevailing cultural traits is considerable. Nor as
pointed out in Burstyn v. Wilson 9 is the “importance of motion pictures as an organ of public
An amended petition was then filed on January 25, 1985. The main objection was the
opinion lessened by the fact that they are designed to entertain as well as to inform.” 10 There
classification of the film as “For Adults Only.” For petitioners, such classification “is without
is no clear dividing line between what involves knowledge and what affords pleasure. If such a
legal and factual basis and is exercised as impermissible restraint of artistic expression. The
distinction were sustained, there is a diminution of the basic right to free expression. Our recent
film is an integral whole and all its portions, including those to which the Board now offers
decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom, as stated in the
belated objection, are essential for the integrity of the film. Viewed as a whole, there is no
opinion of the Court, “may be identified with the liberty to discuss publicly and truthfully any
basis even for the vague speculations advanced by the Board as basis for its classifica-
matter of public 

________________ ________________
4 Petition, par. 3.33. 8 Amended Petition, 20.
5 Ibid, par. 3.35. 9 343 US 495 (1942).

148
10 Ibid, 501.
11 G.R. No. 65366, November 9, 1983, 125 SCRA 553. Cf.
Winters v. New York, 333 US 507 (1948).
724
724 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
concern without censorship or punishment.”12 This is not to say that such freedom, as is the
freedom of speech, absolute. It can be limited if “there be a ‘clear and present danger of a
substantive evil that [the State] has a right to prevent.’ ”13
2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it
were so, then such basic rights are emasculated. It is, however, except in exceptional
circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that
equally basic is the other important aspect of freedom from liability. Nonetheless, for the
purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is,
beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case
of United States v. Sedano,14 a prosecution for libel, the Supreme Court of the Philippines
already made clear that freedom of the press consists in the right to print what one chooses
without any previous license. There is reaffirmation of such a view in Mutuc v. Commission
on Elections,15 where an order of respondent Commission on Elections giving due course to
the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile
units equipped with sound systems and loud speakers was considered an abridgment of the
right of the freedom of expression amounting as it does to censorship. It is the opinion of this
Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent
Board is limited to the classification of films. It can, to safeguard other constitutional
objections, determine what motion pictures are for general patronage and what may require
either parental guidance or be limited to adults only. That is to abide by the principle that
freedom of expression is the rule and restrictions the exemption. The power to exercise prior
restraint is not to be presumed, rather the presumption is against its validity.16
________________
12 Ibid, 560.
13 Ibid, 561.
14 14 Phil. 338. Cf. US v. Sotto, 38 Phil. 666 (1918).
15 L-32717, November 26, 1970, 36 SCRA 228.
16 Cf. Bantam Books, Inc. v. Sullivans, 372 US
58 (1962); Organization for Better Austria v. Keafe, 402 US
415 (1971).
725
VOL. 137, JULY 22, 1985 725
Gonzales vs. Kalaw Katigbak
. 3.The test, to repeat, to determine whether freedom of expression may be limited is
the clear and present danger of an evil of a substantive character that the State has a right to
prevent. Such danger must not only be dear but also present. There should be no doubt that
what is feared may be traced to the expression complained of. The causal connection must be
evident. Also, there must be reasonable apprehension about its imminence. The time element
cannot be ignored. Nor does it suffice if such danger be only probable. There is the
requirement of its being well-nigh inevitable. The basic postulate, therefore, as noted earlier, is
that where the movies, theatrical productions, radio scripts, television programs, and other such
media of expression are concerned—included as they are in freedom of expression—
censorship, especially so if an entire production is banned, is allowable only under the clearest
proof of a clear and present danger of a substantive evil to public safety, public morals, public
health or any other legitimate public interest.17There is merit to the observation of Justice
Douglas that “every writer, actor, or producer, no matter what medium of expression he may
use, should be freed from the censor.”18
. 4.The law, however, frowns on obscenity—and rightly so. As categorically stated
by Justice Brennan in Roth v. United States,19 speaking of the free speech and press guarantee
of the United States Constitution: “All ideas having even the slightest redeeming social
importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate
of opinion—have the full protection of the guaranties, unless excludable because they encroach
upon the limited area of more important interests. But implicit in the history of the First
Amendment is the rejection of obscenity as utterly without redeeming social
importance.”20 Such a view commends itself for approval.
________________
149
17 Cf. Reyes v. Bagatsing, 125 SCRA 553, 562.
18 Superior Films v. Regents of University of State of New
York, 346 US 587, 589 (1954), Douglas, J., concurring.
19 354 US 476 (1957).
20 Ibid, 484-485. There was reference to international
agreements of over 50 nations and the obscenity laws of all the
then
726
726 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
. 5.There is, however, some difficulty in determining what is obscene. There is
persuasiveness to the approach followed in Roth: “The early leading standard of obscenity
allowed material to be judged merely by the effect of an isolated excerpt upon particularly
susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted
this standard but later decisions have rejected it and substituted this test: whether to the average
person, applying contemporary community standards, the dominant theme of the material taken
as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of
isolated passages upon the most susceptible persons, might well encompass material
legitimately treating with sex, and so it must be rejected as un-constitutionally restrictive of the
freedoms of speech and press. On the other hand, the substituted standard provides safeguards
adequate to withstand the charge of constitutional infirmity.”21
. 6.The above excerpt which imposes on the judiciary the duty to be ever on guard
against any impermissible infringement on the freedom of artistic expression calls to mind the
landmark ponencia of Justice Malcolm in United States v. Bustos,22 decided in 1918. While
recognizing the principle that libel is beyond the pale of constitutional protection, it left no
doubt that in determining what constitutes such an offense, a court should ever be mindful that
no violation of the right to freedom of expression is allowable. It is a matter of pride for the
Philippines that it was not until 1984 in New York Timer v. Sullivan,23 thirty-six years later,
that the United States Supreme Court enunciated a similar doctrine.
. 7.It is quite understandable then why in the Roth opinion, Justice Brennan took
pains to emphasize that “sex and obscenity are not synonymous.”24 Further: “Obscene
material is
________________
48 States of the Union as well as 20 obscenity laws enacted by
the Congress of the United States from 1842 to
1956. Chaplinsky v. New Hampshire, 315 US 568 (1942) was
also cited.
21 Ibid, 488-489.
22 37 Phil. 731.
23 376 US 254.
24 Roth v. United States, 354 US 476, 487 (1957).
727
VOL. 137, JULY 22, 1985 727
Gonzales vs. Kalaw Katigbak
material which deals with sex in a manner appealing to prurient interest. The portrayal of sex,
e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the
constitutional protection of freedom of speech and press. Sex, a great and mysterious motive
force in human life, has indisputably been a subject of absorbing interest to mankind through
the ages; it is one of the vital problems of human interest and public concern.”25
8. In the applicable law, Executive Order No. 876, reference was made to respondent Board
“applying contemporary Filipino cultural values as standard,”26words which can be construed
in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it
cannot be stressed strongly that the arts and letters “shall be under the patronage of the
State.”27 That is a constitutional mandate. It will be less than true to its function if any
government office or agency would invade the sphere of autonomy that an artist enjoys. There
is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for
150
him is a true representation. It is not to be forgotten that art and belleslettres deal primarily
with imagination, not so much with ideas in a strict sense. What is seen or perceived by an
artist is entitled to respect, unless there is a showing that the product of his talent rightfully
may be considered obscene. As so well put by Justice Frankfurter in a concurring opinion, “the
widest scope of freedom is to be given to the adventurous and imaginative exercise of the
human spirit”28 in this sensitive area of a man’s personality. On the question of obscenity,
therefore, and in the light of the facts of this case, such standard set forth in Executive Order
No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionally. To repeat,
what was stated in a recent decision29citing the language of Justice  at least nearly naked, on the theater stage. Another scene on that stage depicted the women
________________
25 Ibid.
26 Executive Order No. 876, Section 3(c) (1963).
27 Article XV, Section 9, par. (2), last sentence of the
Constitution.
28 Kingsley v. Regents, 360 US 684, 695 (1959).
29 Lopez, Jr. v. Commission on Elections, G.R. No. 65022,
May 31, 1985.
728
728 SUPREME COURT REPORTS ANNOTATED
Gonzales vs. Kalaw Katigbak
Malcolm in Yu Cong Eng v. Trinidad,30 it is “an elementary, a fundamental, and a universal
role of construction, applied when considering constitutional questions, that when a law is
susceptible of two constructions one of which will maintain and the other destroy it, the courts
will always adopt the former.”31 As thus construed, there can be no valid objection to the
sufficiency of the controlling standard and its conformity to what the Constitution ordains.
9. This being a certiorari petition, the question before the Court is whether or not there was a
grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident
in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was
classified as “For Adults Only.” without any deletion or cut. Moreover its perception of what
constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was
an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse
can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in
this explanation of respondents in its Answer to the amended petition: “The adult classification
given the film serves as a warning to theater operators and viewers that some contents
of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club
and a good portion of the film shots concentrated on some women erotically dancing naked, or
kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of
excessive violence attending the battle between a group of robbers and the police. The
vulnerable and imitative in the young audience will misunderstand these scenes.”32 Further:
“Respondents further stated in its answer that petitioner company has an option to have the
film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and
pare down the violence in the film.”33 Petitioners, however, 
________________
30 47 Phil. 385 (1925).
31 Ibid, 415.
32 Answer to Amended Petition, 4.
33 Ibid, 4-5.
729
VOL. 137, JULY 22, 1985 729
Gonzales vs. Kalaw Katigbak
refused the “For Adults Only” classification and instead, as noted at the outset, filed this suit
for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home where there is
a set. Children then will likely will be among the avid viewers of the programs therein shown.
As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of
151
the law to deal with the sexual fantasies of the adult population.34 It cannot be denied though
that the State as parens patriae is called upon to manifest an attitude of caring for the welfare
of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion,
dismisses this petition for certiorari solely on the ground that there are not enough votes for a
ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as
“For Adults Only.”
The curtailment of the freedoms of speech and press of radio and TV stations is permissible for
election purposes. (United Democratic Opposition (UNIDO) vs. COMELEC, 104 SCRA 17.)
Remarks made at a board meeting are privileged in nature as a valid exercise of one’s
constitutional freedom of expression. An employee cannot be dismissed for making such
remarks alleged to be libelous. (Union of Supervisors (R.B.)—NATU vs. Sec. of Labor, 109
SCRA 139.)

     Teehankee, Makasiar, Concepcion, Jr.,  Melencio-

Herrera, Plana, Escolin,  Relova, Gutierrez, Jr., Cuevas and Alampay, JJ., concur.

     Aquino, J., in the result. Petitioner has no cause of action for certiorari.

     De la Fuente, J., did not take part.

     Abad Santos, J., is on official leave.

Petition dismissed.

Notes.—The request of a school head for a review of student organ’s publication policies does
not constitute an impairment of freedoms of speech and press. (Laxamana vs. Borlata, 47
SCRA 29.)

The Constitution frowns upon disorder or tumult attending a public rally. Peaceable assembly
is guaranteed, but not 

________________

34 Cf. United States v. Roth, 237 F 2d 796 (1956).

730

730 SUPREME COURT REPORTS ANNOTATED 

De Guzman vs. Court of Appeals

resort to force. (Reyes vs. Bagatsing, 125 SCRA 553.) G.R. No. 80806. October 5, 1989.*

Litigations involving permits to stage a rally are better started at the trial court level. (Ruiz vs.
Gordon, 126 SCRA 233.)

152

LEO PITA, doing business under
the name and style of PINOY
PLAYBOY, petitioner, vs. THE
COURT OF APPEALS, RAMON
BAGATSING, and NARCISO
CABRERA, respondents.
Constitutional Law;  Press Freedom; 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 is the test in
determining the existence of obscenity.—The Court states at the outset that it is not the first
time that it is being asked to pronounce what “obscene” means or what makes for an obscene
or pornographic literature. 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.”
Same;  Same; Same;  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.
—As the Court declared, the issue is a complicated one, in which the fine lines have neither
been drawn nor divided. It is easier said than done to say, indeed, 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.
Same;  Same; There is no challenge on the right of the State in the legitimate exercise of police
power to suppress smut—provided it is smut.—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. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are considered important literature today. 
_______________
* EN BANC.
363
VOL. 178, OCTOBER 5, 1989 363 
Pita vs. Court of Appeals
Goya’s La Maja desnuda was once banned from public exhibition but now adorns the world’s
most prestigious museums.
Same; Same; Obscenity is not a bare matter of opinion.—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.
Same; Same; Immoral lore or literature comes within the ambit of free expression although
not its protection; Burden to show the existence of grave and imminent danger that would
justify adverse action lies on the authorities.—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, so we asserted in Reyes v.
Bagatsing, “the burden to show the existence of grave and imminent danger that would justify
adverse action . . . lies on the . . . authorit[ies].”
Same; Same; Clear and Present Danger Rule; There must be objective and convincing, not
subjective or conjectural, proof of the existence of such clear and present danger.— “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.”
Same; Same; Same; Same; Court not convinced that 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.—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.
Same; Same; Same; Same; Same; Police Power; Fact that the former respondent Mayor’s act
was sanctioned by police power is no license to seize property in disregard of due process;
Police power
153
364
364 SUPREME COURT REPORTS ANNOTATED 
Pita vs. Court of Appeals
defined.—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. In Philippine Service Exporters, Inc. v.
Drilon, we defined police power as “state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare.” Presidential Decrees Nos.
960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities
for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the
twin presidential issuances (Mr. Marcos’), from the commandments of the Constitution, the
right to due process of law and the right against unreasonable searches and seizures,
specifically.
Same;  Same; Searches and Seizures; Searches and seizures may be done only through a
judicial warrant otherwise they become unreasonable and subject to challenge.—It is basic
that searches and seizures may be done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, We
countermanded the orders of the Regional Trial Court authorizing the search of the premises of
We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant.
We have greater reason here to reprobate the questioned raid, in the complete absence of a
warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no
different from Burgos, a political case, because, and as we have indicated, speech is speech,
whether political or “obscene”.
Same;  Same; Same;  Same; Court not ruling out warrantless searches.—The Court is not
ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing),
provide: SEC. 12. Search without warrant of person arrested.—A person charged with an
offense may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense. But as the provision itself suggests, the search must have been an
incident to a lawful arrest, and the arrest must be on account of a crime committed. Here, no
party has been charged, nor are such charges being readied against any party, under Article
201, as amended, of the Revised Penal Code.
Same;  Same; Same;  Same; Same;  Argument that there is no constitutional nor legal provision
which would free the accused of all criminal responsibility because there had been no warrant
and that violation of penal law must be punished, rejected.—We reject outright the argument
that “[t]here is no constitutional nor legal provision which would 
365
VOL. 178, OCTOBER 5, 1989  365 University belt along C.M. Recto Avenue, Manila, in the
Pita vs. Court of Appeals
free the accused of all criminal responsibility because there had been no warrant,” and that
“violation of penal law [must] be punished.” For starters, 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. And precisely, this is the very
complaint of the petitioner.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     William C. Arceno for petitioner.
     Casibang, Perello and De Dios for private respondent.
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a “men’s magazine”, seeks the review of the
decision of the Court of Appeals,1 rejecting his appeal from the decision of the Regional Trial
Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty
against unreasonable searches and seizures of the Constitution, as well as its prohibition
against deprivation of property without due process of law.
There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign
initiated 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, news-stand 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
154
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.  seizure, confiscation and burning of plaintiff’s “Pinoy
_____________
1 Gonzaga-Reyes, Minerva, J., Javellana, Luis A. and Ramirez,
Pedro A., JJ., Concurring.
366
366 SUPREME COURT REPORTS ANNOTATED  burning of obscence reading materials on December 1 and 3,
Pita vs. Court of Appeals
On December 7, 1983, plaintiff filed a case for injunction with
prayer for issuance of the writ of preliminary injunction against
Mayor Bagatsing and Narcisco Cabrera, as superintendent of
Western Police District of the City of Manila, seeking to enjoin
and/or restrain said defendants and their agents from
confiscating plaintiff’s magazines or from otherwise 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.
By order dated December 8, 1983 the Court set the hearing on
the petition for preliminary injunction on December 14, 1983
and ordered the defendants to show cause not later than
December 13, 1983 why the writ prayed for should not be
granted.
On December 12, 1983, plaintiff filed an Urgent Motion for
issuance of a temporary restraining order against indiscriminate
Playboy” Magazines, pending hearing on the petition for
preliminary injunction in view of Mayor Bagatsing’s
pronouncement to continue the Anti-Smut Campaign. The
Court granted the temporary restraining order on December 14,
1983.
In his Answer and Opposition filed on December 27, 1983
defendant Mayor Bagatsing admitted the confiscation and
1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that
the said confiscation and seizure was (sic) undertaken pursuant
to P.D. No. 960, as amended by P.D. No. 969, which amended
Article 201 of the Revised Penal Code. In opposing the
plaintiff’s application for a writ of preliminary injunction,
defendant pointed out that in that anti-smut campaign
conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and
peddlers who voluntarily surrendered their reading materials,
and that the plaintiff’s establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera,
filed no answer.
On January 5, 1984, plaintiff filed his Memorandum in support
of the issuance of the writ of preliminary injunction, raising the
issue as to “whether or not the defendants and/or their agents
155
can without a court order confiscate or seize plaintiff’s
magazine before any judicial finding is made on whether said
magazine is obscene or not”.
The restraining order issued on December 14, 1983 having
lapsed on January 3, 1984, the plaintiff filed an urgent motion
for issuance of another restraining order, which was opposed
by defendant on the ground that issuance of a second
restraining order would violate the  1984. Defendant filed his Comment on plaintiff’s supplemental
367
VOL. 178, OCTOBER 5, 1989  367
Pita vs. Court of Appeals
Resolution of the Supreme Court dated January 11, 1983,
providing for the Interim Rules Relative to the Implementation
of Batas Pambansa Blg. 129, which provides that a temporary
restraining order shall be effective only for twenty days from
date of its issuance.
On January 9, 1984 defendant filed his Comment and/or
Rejoinder Memorandum in support of his opposition to the
issuance of a writ of preliminary injunction.
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 January 16, 1984, the Court issued an order granting
plaintiff’s motion to be given three days “to file a reply to
defendants’ opposition dated January 9, 1984, serving a copy
thereof to the counsel for the defendants, who may file a
rejoinder within the same period from receipt, after which the
issue of Preliminary Injunction shall be resolved”.
Plaintiff’s supplemental Memorandum was filed on January 18,
Memorandum on January 20, 1984, and plaintiff filed his
“Reply-Memorandum” to defendants’ Comment on January
25, 1984.
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.2
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by
appellant that seizure of allegedly obscene publications or
materials deserves close scrutiny because of the constitutional
guarantee protecting the right to express oneself in print (Sec.
9, Art. IV), and the protection afforded by the constitution
against unreasonable searches and seizure (Sec. 3, Art. IV). It
must be equally conceded, however, that 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 (Sec. 1, Art. 201,
Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969). Also well settled is the rule that the right against
unreasonable searches 
156
_____________ ____________

2 Rollo, 30-31. 3 Id., 41.

368 4 Id., 12-13.

368 SUPREME COURT REPORTS ANNOTATED 5 45 Phil. 352 (1923), per Malcolm, J.

Pita vs. Court of Appeals 6 Supra, 356

and seizures recognizes certain exceptions, as when there is 7 Supra, 357.

consent to the search or seizure, (People vs. Malesugui, 63
Phil. 22) or search is an incident to an arrest, (People vs. 8 Supra.
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is
conducted in a vehicle or movable structure (See Papa vs. 9 Supra, 359.
Magno, 22 SCRA 857).3
369
The petitioner now ascribes to the respondent court the following errors:
VOL. 178, OCTOBER 5, 1989  369
. 1.The Court of Appeals erred in affirming the decision of the trial court and, in
effect, 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
Pita vs. Court of Appeals
obscene.
. 2.The Court of Appeals erred in affirming the decision of the trial court and, in Yet Kottinger, in its effort to arrive at a “conclusive” definition, succeeded merely in
generalizing a problem that has grown increasingly complex over the years. Precisely, the
effect, holding that the trial court could dismiss the case on its merits without any hearing question is: When does a publication have a corrupting tendency, or when can it be said to be
thereon when what was submitted to it for resolution was merely the application of petitioner offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of
for the writ of preliminary injunction.4 literature has a corrupting influence because it is obscene, and vice-versa.

The Court states at the outset that it is not the first time that it is being asked to pronounce what Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would
“obscene” means or what makes for an obscene or pornographic literature. Early on, in People leave the final say to a hypothetical “community standard”—whatever that is—and that the
vs. Kottinger,5 the Court laid down the test, in determining the existence of obscenity, as question must supposedly be judged from case to case.
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 About three decades later, this Court promulgated People v. Go Pin,10 a prosecution under
article charged as being obscene may fall.”6 “Another test,” so Kottinger further declares, “is Article 201 of the Revised Penal Code. Go Pin was also even hazier:
that which shocks the ordinary and common sense of men as an
indecency.”7 Kottinger hastened to say, however, that “[w]hether a picture is obscene or
indecent must depend upon the circumstances of the case,”8 and that ultimately, the question is
to be decided by the “judgment of the aggregate sense of the community reached by it.”9
x x x We agree with counsel for appellant in part. If such
pictures, sculptures and paintings are shown in art exhibits and

157
art galleries for the cause of art, to be viewed and appreciated
by people interested in art, there would be no offense
committed. However, the pictures here in question were used
not exactly for art’s sake but rather for commercial purposes.
In other words, the supposed artistic qualities of said pictures
were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear
to have been the main, if not the exclusive consideration in
their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the
privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste,
and lust, and for love for excitement, including the youth who
because of their immaturity are not in a position to resist and
shield themselves from the ill and perverting effects of these
pictures.11
xxx     xxx     xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been
drawn nor divided. It is easier  causing as it does, nothing but lust and lewdness, and exerting
____________
10 97 Phil. 418 (1955), per Montemayor, J.
11 Supra, 419.
370
370 SUPREME COURT REPORTS ANNOTATED  what is art.
Pita vs. Court of Appeals
said than done to say, indeed, that if “the pictures here in question were used not exactly for
art’s sake but rather for commercial purposes,”12 the pictures are not entitled to any
constitutional protection.
It was People v. Padan y Alova,13 however, that introduced to Philippine jurisprudence the
“redeeming” element that should accompany the work, to save it from a valid prosecution. We
quote:
x x x 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
a corrupting influence specially on the youth of the land. x x
x14
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
exhibition was attended by “artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes,”15 could the same
legitimately lay claim to “art”? For another, suppose that the exhibition was so presented that
“connoisseurs of [art], and painters and sculptors might find inspiration,”16 in it, would it
cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has
permitted an ad lib of ideas and “two-cents worths” among judges as to what is obscene and
 
158
____________ 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.”24

12 Supra. (A year later, the American Supreme Court decided Hamling

13 101 Phil. 749 (1957). ______________

14 Supra, 752. 17 No. 69500, July 21, 1985, 137 SCRA 717, per

Fernando, C.J.
15 Go Pin, supra.
18 Supra, 726, citing Roth v. United States, 354 US
16 Padan y Alova, supra. 476 (1957).

371 19 TRIBE, AMERICAN CONSTITUTIONAL LAW 656

(1978 ed.).
VOL. 178, OCTOBER 5, 1989 371
20 383 US 410 (1966).
Pita vs. Court of Appeals
21 See TRIBE, id., 661.
In a much later decision, Gonzalez v. Kalaw Katigbak,17 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 22 413 US 15 (1973).
interest.”18 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 23 Supra, 24.
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. 24 Supra.

It is significant that in the United States, constitutional law on obscenity continues to journey 372
from development to development, which, states one authoritative commentator (with ample
sarcasm), has been as “unstable as it is unintelligible.”19
372 SUPREME COURT REPORTS ANNOTATED 
Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one “utterly
without any redeeming social value,”21 marked yet another development.
Pita vs. Court of Appeals
The latest word, however, is Miller v. California,22 which expressly
abandoned Massachusettes, and established “basic guidelines,”23 to wit: “(a) whether ‘the v. United States,25 which repeated Miller, and Jenkins v. Georgia,26 yet another reiteration
average person, applying contemporary standards’ would find the work, taken as a whole, of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal
appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently Knowledge, in the absence of “genitals” portrayed on screen, although the film highlighted
contemporary American sexuality.)

159
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.27 Apparently, the courts have assumed that “obscen-ity” is not included in the Pita vs. Court of Appeals
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.
And “[t]here is little likelihood,” says Tribe, “that this development has reached a state of rest, intended) matter of opinion. As we said earlier, it is the divergent perceptions of men and
or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, women that have probably compounded the problem rather than resolved it.
although it is subject—as in all speech—to regulation in the interests of [society as a whole]—
but not in the interest of a uniform vision of how human sexuality should be regarded and What the Court is impressing, plainly and simply, is that the question is not, and has not been,
portrayed.”28 an easy one to answer, as it is far from being a settled matter. We share Tribe’s disappointment
over the discouraging trend in American decisional law on obscenity as well as his pessimism
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of on whether or not an “acceptable” solution is in sight.
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, In the final analysis perhaps, the task that confronts us is less heroic than rushing to a “perfect”
adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What definition of “obscenity”, if that is possible, as evolving standards for proper police conduct
shocked our forebears, say, five decades ago, is not necessarily repulsive to the present faced with the problem, which, after all, is the plaint specifically raised in the petition.
generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are
considered important literature today.29Goya’s La Maja desnuda was once banned from public
exhibition but now adorns the world’s most prestigious museums. However, this much we have to say.

But neither should we say that “obscenity” is a bare (no pun 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.30 But, so we asserted in Reyes v. Bagatsing,31“the burden to show the existence of
grave and imminent danger that would justify adverse action . . . lies on the . . .
authorit[ies].”32
25 418 US 87 (1974).
“There must be objective and convincing, not subjective or conjectural, proof of the existence
of such clear and present danger.”33 “It is essential for the validity of . . . previous restraint or
26 418 US 153 (1974). censorship that the . . . authority does not rely solely on his own appraisal of what the public
welfare, peace or safety may require.”34
27 TRIBE, id.
“To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the
clear and present danger test.”35
28 Id., 661-662; emphasis in the original.
____________
29 See Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959).
The case involved the movie version in Lady Chatterley’s 30 Gonzales vs. COMELEC, No. L-27833, April 18, 1969, 27
Lover. See also United States v. One Book called “Ulysses”, 5 SCRA 835; Reyes v. Bagatsing, No. 65366, November 9,
F. Supp. 182 (1934). 1983, 125 SCRA 553.
373
31 Supra.
VOL. 178, OCTOBER 5, 1989 373

160
32 Supra, 572 per Teehankee, J., Concurring; emphasis in the
original.
33 Supra, emphasis in the original.
34 Supra, emphasis in the original.
35 Supra, emphasis in the original.
374
374 SUPREME COURT REPORTS ANNOTATED 
Pita vs. Court of Appeals
The above disposition must not, however, be taken as a neat effort to arrive at a solution—so
only we may arrive at one—but rather as a serious attempt to put the question in its proper
perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.
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. Meanwhile, the Government must allow it (the speech).
It has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and
present danger), it must come to terms with, and be held accountable for, due process.
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.
The Court of Appeals has no “quarrel that . . . 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.”36 Neither do we. But it brings us back to square one: were the “literature” so
confiscated “pornographic”? That “we have laws punishing the author, publisher and sellers of
obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and
P.D. No. 969),”37 is also fine, but the question, again, is: Has the petitioner been found guilty
under the statute? 
_____________
36 Rollo, id., 41.
37Id., The question whether or not Presidential Decrees Nos.
960 and 969 are unconstitutional is another thing; we will deal
with the problem in the proper hour and in the appropriate case.
Judicial restraint is a bar to a consideration of the problem that
does not exist, or if it exists, it exists but in the abstract.
375
VOL. 178, OCTOBER 5, 1989 375 
Pita vs. Court of Appeals
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. In Philippine Service Exporters, Inc. v.
Drilon,38 We defined police power as “state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare.”39 Presidential
Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not exempt our law enforcers, in
carrying out the decree of the twin presidential issuances (Mr. Marcos’), from the
commandments of the Constitution, the right to due process of law and the right against
unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay
down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles.—The disposition
of the literature, films, prints, engravings, sculptures, paintings,
or other materials involved in the violation referred to in
Section 1 hereof (Art. 201), RPC as amended) shall be
governed by the following rules:
161
. (a)Upon conviction of the offender, to be forfeited in favor
of the Government to be destroyed.
. (b)Where the criminal case against any violator of this
decree results in an acquittal, the obscene/immoral literature, films,
prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1 (referring to
Art. 201) hereof shall nevertheless be forfeited in favor of the
government to be destroyed, after forfeiture proceedings conducted
by the Chief of Constabulary.
. (c)The person aggrieved by the forfeiture action of the Chief
of Constabulary may, within fifteen (15) days after his receipt of a
copy of the decision, appeal the matter to the Secretary of National
Defense for review. The decision of the Secretary of National
Defense shall be final and unappealable. (Sec. 2, PD No. 960 as
amended by PD No. 969.)
Sec. 4. Additional Penalties.—Additional penalties shall be
imposed as follows:
1.In case the offender is a government official or employee
______________
38 G.R. No. 81958, June 30, 1988.
39 Supra, at 3.
376
376 SUPREME COURT REPORTS ANNOTATED
Pita vs. Court of Appeals
. who allows the violations of Section 1 hereof, the penalty as
provided herein shall be imposed in the maximum period and, in
addition, the accessory penalties provided for in the Revised Penal
Code, as amended, shall likewise be imposed.40
Under the Constitution,41 on the other hand:
SEC. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be
seized.42
It is basic that searches and seizures may be done only through a judicial warrant, otherwise,
they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP,43 We
countermanded the orders of the Regional Trial Court authorizing the search of the premises
of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective
warrant. We have greater reason here to reprobate the questioned raid, in the complete absence
of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it
no different from Burgos, a political case, because, and as we have indicated, speech is speech,
whether political or “obscene”.
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules
then prevailing), provide:
SEC. 12. Search without warrant of person arrested.—A
person charged with an offense may be searched for dangerous
weapons or anything which may be used as proof of the
commission of the of-
_______________
162
40 Pres. Decree No. 960, sec. 2 as amended by Pres. Decree . 3.The judge must determine whether or not the same are indeed “obscene:” the
No. 969. question is to be resolved on a case-to-case basis and on His Honor’s sound discretion.
. 4.If, in the opinion of the court, probable cause exists, it
41 CONST. (1973), the Charter then in force.
_______________
42 Supra, art. IV, sec. 3.
44 RULES OF COURT (1964), Rule 126, sec. 12. As
43 No. 64266, December 26, 1984, 133 SCRA 800. amended, the provision now reads as follows: “SEC. 12.
Search incident to lawful arrest.—A person lawfully arrested
377 may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without
VOL. 178, OCTOBER 5, 1989 377 a search warrant.” [RULES ON CRIMINAL PROCEDURE
(1985 rev.), Rule 126, sec. 12.]
Pita vs. Court of Appeals
45 Rollo, id., 51.
fense.44
46 Id.
but as the provision itself suggests, the search must have been an incident to a lawful arrest,
and the arrest must be on account of a crime committed. Here, no party has been charged, nor
378
are such charges being readied against any party, under Article 201, as amended, of the
Revised Penal Code.
378 SUPREME COURT REPORTS ANNOTATED 
We reject outright 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,”45 and
that “violation of penal law [must] be punished.”46 For starters, there is no “accused” here to Pita vs. Court of Appeals
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. And precisely, this is the very
. may issue the search warrant prayed for;
complaint of the petitioner. . 5.The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;
We make this resumé. . 6.Any conviction is subject to appeal. The appellate court may assess whether or
not the properties seized are indeed “obscene”.
. 1.The authorities must apply for the issuance of a search warrant from a judge, if in
their opinion, an obscenity rap is in order; These do not foreclose, however, defenses under the Constitution or applicable statutes, or
. 2.The authorities must convince the court that the materials sought to be seized are remedies against abuse of official power under the Civil Code47 or the Revised Penal code.48
“obscene”, and pose a clear and present danger of an evil substantive enough to warrant State
interference and action; _______________

163
47 CIVIL CODE, art. 32. The provision states:
“ART. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:
. (1)Freedom of religion;
. (2)Freedom of speech;
. (3)Freedom to write for the press or to maintain a periodical
publication;
. (4)Freedom from arbitrary or illegal detention;
. (5)Freedom of suffrage;
. (6)The right against deprivation of property without due
process of law;
. (7)The right to a just compensation when private property is
taken for public use;
. (8)The right to the equal protection of the laws;
. (9)The right to be secure in one’s person, house, papers, and
effects against unreasonable searches and seizures;
. (10)The liberty of abode and of changing the same;
. (11)The privacy of communication and correspondence;
. (12)The right to become member of associations or societies
for purposes not contrary to law;
. (13)The right to take part in a peaceable assembly to petition
the Government for redress of grievances;
. (14)The right to be free from involuntary servitude in any
form;
. (15)The right of the accused against excessive bail;
. (16)The right of the accused to be heard by himself and
counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance
of witness in his behalf;
. (17)Freedom from being compelled to be a witness against
one’s self, or from being forced to confess guilt, or from being
induced by a
379
VOL. 178, OCTOBER 5, 1989 379
Pita vs. Court of Appeals
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search
and seizure 
_______________
. promise of immunity or reward to make such confession,
except when the person confessing becomes a State witness;
. (18)Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in accordance
with a statute which has not been judicially declared
unconstitutional; and
. (19)Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the
defendant’s act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate
and distinct civil action for damages, and for other relief. Such
164
civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
cases where a search is proper, shall search the domicile,
papers or other belongings of any person, in the absence of the
latter, any member of his family, or in their default, without the
presence of two witnesses residing in the same locality.
380

The responsibility herein set forth is not demandable from a 380 SUPREME COURT REPORTS ANNOTATED 
judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute. Avedana vs. Court of Appeals

48 REV. PEN. CODE, arts. 129, 130. The provisions state: have been destroyed, the Court declines to grant affirmative relief. To that extent, the case is
moot and academic.

“ART. 129. Search warrants maliciously obtained and abuse SO ORDERED.

in the service of those legally obtained.—In addition to the
liability attaching to the offender for commission of any other      Melencio-Herrera, Cruz, Paras,  Gancayco, Padilla,  Bidin, Cortés, Griño-Aquino, Medial
dea and Regalado, JJ., concur.
offense, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period and a fine not      Fernan (C.J.), Narvasa and Feliciano, JJ., In the result.
exceeding P1,000 pesos shall be imposed upon any public
officer or employee who shall procure a search warrant without      Gutierrez, Jr., J., On leave.

just cause, or, having legally procured the same, shall exceed
Petition granted. Decision reversed and set aside.
his authority or use unnecessary severity in executing the same.
Note.—General search warrants are outlawed because they place the sanctity of the domicile
The acts, committed by a public officer or employee, and the privacy of communication and correspondence at the mercy of the whims, caprice or
passion of peace officers. (Stonehill vs. Diokno, L-19550, June 19, 1967, 20 SCRA 383.)
punishable by the above article are:

. (1)Procuring a search warrant without just cause;

. (2)Exceeding one’s authority or using unnecessary severity
in the execution of a legally procured search warrant.”

“ART. 130. Searching domicile without witnesses.—The

penalty of arresto mayor in its medium and maximum periods
shall be imposed upon a public officer or employee who, in

165
 CERTIORARI TO THE UNITED STATES COURT OF
APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

Respondents, two Indiana establishments wishing to

provide totally nude dancing as entertainment and
individual dancers employed at those establishments,
brought suit in the District Court to enjoin
enforcement of the state public indecency law -- which
requires respondent dancers to wear pasties and a G-
U.S. Supreme Court string -- asserting that the law's prohibition against
total nudity in public places violates the First
Barnes v. Glen Theatre, Inc., 501 U.S. 560 Amendment. The court held that the nude dancing
involved here was not expressive conduct. The Court
(1991) of Appeals reversed, ruling that nonobscene nude
dancing performed for entertainment is protected
Barnes v. Glen Theatre, Inc. expression, and that the statute was an improper
infringement of that activity because its purpose was
No. 90-26
to prevent the message of eroticism and sexuality
conveyed by the dancers.
Argued Jan. 8, 1991
Held: The judgment is reversed.
Decided June 21, 1991
904 F.2d 1081 (CA9 1990), reversed.
501 U.S. 560

166
The CHIEF JUSTICE, joined by JUSTICE O'CONNOR and
JUSTICE KENNEDY, concluded that the enforcement of
Indiana's public indecency law to prevent totally nude
dancing does not violate the First Amendment's
guarantee of freedom of expression. Pp.  501 U. S.
565-572.
(a) Nude dancing of the kind sought to be performed
here is expressive conduct within the outer perimeters
of the First Amendment, although only marginally
so.  See, e.g., Doran v. Salem Inn, Inc., 422 U. S.
922,  422 U. S. 932. Pp.  501 U. S. 565-566.
(b) Applying the four-part test of United States v.
O'Brien, 391 U. S. 367,  391 U. S. 376-377 -- which
rejected the contention that symbolic speech is
entitled to full First Amendment protection -- the
statute is justified despite its incidental limitations on
some expressive activity. The law is clearly within the
State's constitutional power. And it furthers a
substantial governmental interest in protecting
societal order and morality. Public indecency statutes
reflect moral disapproval of people appearing in the
nude among strangers in public places, and this
particular law follows a line of state laws, dating back
to 1831, banning public nudity. The States' traditional
police power is defined as the authority to provide for
the public health, safety, and morals, and such a basis
for legislation 
Page 501 U. S. 561
has been upheld.  See, e.g., Paris Adult Theatre I v.
Slaton, 413 U. S. 49,  413 U. S. 61. This governmental
interest is unrelated to the suppression of free
expression, since public nudity is the evil the State
seeks to prevent, whether or not it is combined with
expressive activity. The law does not proscribe nudity
in these establishments because the dancers are
conveying an erotic message. To the contrary, an
erotic performance may be presented without any
state interference, so long as the performers wear a
scant amount of clothing. Finally, the incidental
restriction on First Amendment freedom is no greater
than is essential to the furtherance of the
governmental interest. Since the statutory prohibition
is not a means to some greater end, but an end itself,
it is without cavil that the statute is narrowly tailored.
Pp.  501 U. S. 566-572.
JUSTICE SCALIA concluded that the statute -- as a
general law regulating conduct and not specifically
directed at expression, either in practice or on its face
-- is not subject to normal First Amendment scrutiny,
and should be upheld on the ground that moral
opposition to nudity supplies a rational basis for its
167
prohibition.  Cf. Employment Division, Oregon Dept. of
Human Resources v. Smith, 494 U. S. 872. There is no
intermediate level of scrutiny requiring that an
incidental restriction on expression, such as that
involved here, be justified by an important or
substantial governmental interest. Pp.  501 U. S. 572-
580.
JUSTICE SOUTER, agreeing that the nude dancing at
issue here is subject to a degree of First Amendment
protection, and that the test of United States v.
O'Brien, 391 U. S. 367, is the appropriate analysis to
determine the actual protection required, concluded
that the State's interest in preventing the secondary
effects of adult entertainment establishments --
prostitution, sexual assaults, and other criminal
activity -- is sufficient under O'Brien to justify the law's
enforcement against nude dancing. The prevention of
such effects clearly falls within the State's
constitutional power. In addition, the asserted interest
is plainly substantial, and the State could have
concluded that it is furthered by a prohibition on nude
dancing, even without localized proof of the harmful
effects.  See Renton v. Playtime Theatres, Inc., 475 U.
S. 41,  475 U. S. 50. Moreover, the interest is unrelated
to the suppression of free expression, since the
pernicious effects are merely associated with nude
dancing establishments and are not the result of the
expression inherent in nude dancing.  Id. at  475 U. S.
48. Finally, the restriction is no greater than is
essential to further the governmental interest, since
pasties and a G-string moderate expression to a minor
degree when measured against the dancer's
remaining capacity and opportunity to express an
erotic message. Pp.  501 U. S. 581-587. 
Page 501 U. S. 562
REHNQUIST, C.J., announced the judgment of the
Court and delivered an opinion in which O'CONNOR
and KENNEDY, JJ., joined. SCALIA, J., post, p.  501 U. S.
572, and SOUTER, J., post, p.  501 U. S. 581, filed
opinions concurring in the judgment. WHITE, J., filed a
dissenting opinion, in which MARSHALL, BLACKMUN,
and STEVENS, JJ., joined, post, p.  501 U. S. 587.
CHIEF JUSTICE REHNQUIST delivered the opinion of
the Court.
Respondents are two establishments in South Bend,
Indiana, that wish to provide totally nude dancing as
entertainment, and individual dancers who are
employed at these 
Page 501 U. S. 563
168
establishments. They claim that the First
Amendment's guarantee of freedom of expression
prevents the State of Indiana from enforcing its public
indecency law to prevent this form of dancing. We
reject their claim.
The facts appear from the pleadings and findings of
the District Court, and are uncontested here. The Kitty
Kat Lounge, Inc. (Kitty Kat) is located in the city of
South Bend. It sells alcoholic beverages and presents
"go-go dancing." Its proprietor desires to present
"totally nude dancing," but an applicable Indiana
statute regulating public nudity requires that the
dancers wear "pasties" and a "G-string" when they
dance. The dancers are not paid an hourly wage, but
work on commission. They receive a 100 percent
commission on the first $60 in drink sales during their
performances. Darlene Miller, one of the respondents
in the action, had worked at the Kitty Kat for about two
years at the time this action was brought. Miller
wishes to dance nude because she believes she would
make more money doing so.
Respondent Glen Theatre, Inc., is an Indiana
corporation with a place of business in South Bend. Its
primary business is supplying so-called adult
entertainment through written and printed materials,
movie showings, and live entertainment at an
enclosed "bookstore." The live entertainment at the
"bookstore" consists of nude and seminude
performances and showings of the female body
through glass panels. Customers sit in a booth and
insert coins into a timing mechanism that permits
them to observe the live nude and seminude dancers
for a period of time. One of Glen Theatre's dancers,
Gayle Ann Marie Sutro, has danced, modeled, and
acted professionally for more than 15 years, and in
addition to her performances at the Glen Theatre, can
be seen in a pornographic movie at a nearby theater.
App. to Pet. for Cert. 131-133.
Respondents sued in the United States District Court
for the Northern District of Indiana to enjoin the
enforcement of the Indiana public indecency statute,
Ind.Code § 35-45-4-1 
Page 501 U. S. 564
(1988), asserting that its prohibition against complete
nudity in public places violated the First Amendment.
The District Court originally granted respondents'
prayer for an injunction, finding that the statute was
facially overbroad. The Court of Appeals for the
Seventh Circuit reversed, deciding that previous
litigation with respect to the statute in the Supreme
Court of Indiana and this Court precluded the
possibility of such a challenge, [Footnote 1] and
169
remanded to the District Court in order for the
plaintiffs to pursue their claim that the statute violated
the First Amendment as applied to their dancing.  Glen
Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986).
On remand, the District Court concluded that  does not violate the First Amendment.
Page 501 U. S. 565
"the type of dancing these plaintiffs wish to perform is
not expressive activity protected by the Constitution of
the United States," and rendered judgment in favor of
the defendants.  Glen Theatre, Inc. v. Civil City of South
Bend, 695 F.Supp. 414, 419 (ND Ind.1988). The case
was again appealed to the Seventh Circuit, and a panel
of that court reversed the District Court, holding that
the nude dancing involved here was expressive
conduct protected by the First Amendment. Miller v.
Civil City of South Bend, 887 F.2d 826 (CA7 1989). The
Court of Appeals then heard the case en banc, and the
court rendered a series of comprehensive and
thoughtful opinions. The majority concluded that
nonobscene nude dancing performed for
entertainment is expression protected by the First
Amendment, and that the public indecency statute
was an improper infringement of that expressive
activity because its purpose was to prevent the
message of eroticism and sexuality conveyed by the
dancers.  Miller v. Civil City of South Bend, 904 F.2d
1081 (CA7 1990). We granted certiorari, 498 U.S. 807
(1990), and now hold that the Indiana statutory
requirement that the dancers in the establishments
involved in this case must wear pasties and a G-string
Several of our cases contain language suggesting that
nude dancing of the kind involved here is expressive
conduct protected by the First Amendment. In Doran
v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 932 (1975),
we said:
"[A]lthough the customary 'barroom' type of nude
dancing may involve only the barest minimum of
protected expression, we recognized in California v.
LaRue, 409 U. S. 109,  409 U. S. 118 (1972), that this
form of entertainment might be entitled to First and
Fourteenth Amendment protection under some
circumstances."
In Schad v. Borough of Mount Ephraim, 452 U. S.
61,  452 U. S. 66 (1981), we said that "[f]urthermore, as
the state courts in this case recognized, nude dancing
is not without its First Amendment protections from
official regulation" (citations omitted). These
statements support the conclusion of the Court of
Appeals 
Page 501 U. S. 566
170
that nude dancing of the kind sought to be performed
here is expressive conduct within the outer perimeters
of the First Amendment, though we view it as only
marginally so. This, of course, does not end our
inquiry. We must determine the level of protection to
be afforded to the expressive conduct at issue, and
must determine whether the Indiana statute is an
impermissible infringement of that protected activity.
Indiana, of course, has not banned nude dancing as
such, but has proscribed public nudity across the
board. The Supreme Court of Indiana has construed
the Indiana statute to preclude nudity in what are
essentially places of public accommodation such as
the Glen Theatre and the Kitty Kat Lounge. In such
places, respondents point out, minors are excluded
and there are no nonconsenting viewers. Respondents
contend that, while the state may license
establishments such as the ones involved here and
limit the geographical area in which they do business,
it may not in any way limit the performance of the
dances within them without violating the First
Amendment. The petitioner contends, on the other
hand, that Indiana's restriction on nude dancing is a
valid "time, place or manner" restriction under cases
such as Clark v. Community for Creative Non-
Violence, 468 U. S. 288 (1984).
The "time, place, or manner" test was developed for
evaluating restrictions on expression taking place on
public property which had been dedicated as a "public
forum," Ward v. Rock Against Racism, 491 U. S.
781,  491 U. S. 791 (1989), although we have on at least
one occasion applied it to conduct occurring on
private property.  See Renton v. Playtime Theatres,
Inc., 475 U. S. 41 (1986). In Clark, we observed that this
test has been interpreted to embody much the same
standards as those set forth in United States v.
O'Brien, 391 U. S. 367 (1968), and we turn, therefore,
to the rule enunciated in O'Brien.
O'Brien burned his draft card on the steps of the
South Boston courthouse in the presence of a sizable
crowd, and 
Page 501 U. S. 567
was convicted of violating a statute that prohibited the
knowing destruction or mutilation of such a card. He
claimed that his conviction was contrary to the First
Amendment because his act was "symbolic speech" --
expressive conduct. The court rejected his contention
that symbolic speech is entitled to full First
Amendment protection, saying:
"[E]ven on the assumption that the alleged
communicative element in O'Brien's conduct is
171
sufficient to bring into play the First Amendment, it
does not necessarily follow that the destruction of a
registration certificate is constitutionally protected
activity. This Court has held that, when 'speech' and
'nonspeech' elements are combined in the same
course of conduct, a sufficiently important
governmental interest in regulating the nonspeech
element can justify incidental limitations on First
Amendment freedoms. To characterize the quality of
the governmental interest which must appear, the
Court has employed a variety of descriptive terms:
compelling; substantial; subordinating; paramount;
cogent; strong. Whatever imprecision inheres in these
terms, we think it clear that a government regulation is
sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important
or substantial governmental interest; if the
governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest."
Id. at  391 U. S. 376-377 (footnotes omitted).
Applying the four-part O'Brien test enunciated above,
we find that Indiana's public indecency statute is
justified despite its incidental limitations on some
expressive activity. The public indecency statute is
clearly within the constitutional power of the State,
and furthers substantial governmental interests. It is
impossible to discern, other than from the text of the
statute, exactly what governmental interest the
Indiana legislators had in mind when they enacted 
Page 501 U. S. 568
this statute, for Indiana does not record legislative
history, and the state's highest court has not shed
additional light on the statute's purpose. Nonetheless,
the statute's purpose of protecting societal order and
morality is clear from its text and history. Public
indecency statutes of this sort are of ancient origin,
and presently exist in at least 47 States. Public
indecency, including nudity, was a criminal offense at
common law, and this Court recognized the common
law roots of the offense of "gross and open indecency"
in Winters v. New York, 333 U. S. 507,  333 U. S.
515(1948). Public nudity was considered an act malum
en se.  Le Roy v. Sidley, 1 Sid. 168, 82 Eng.Rep. 1036
(K.B.1664). Public indecency statutes such as the one
before us reflect moral disapproval of people
appearing in the nude among strangers in public
places.
This public indecency statute follows a long line of
earlier Indiana statutes banning all public nudity. The
history of Indiana's public indecency statute shows
172
that it predates barroom nude dancing, and was
enacted as a general prohibition. At least as early as
1831, Indiana had a statute punishing "open and
notorious lewdness, or . . . any grossly scandalous and
public indecency." Rev.Laws of Ind., ch. 26, § 60 (1831);
Ind.Rev.Stat., ch. 53, § 81 (1834). A gap during which
no statute was in effect was filled by the Indiana
Supreme Court in Ardery v. State, 56 Ind. 328 (1877),
which held that the court could sustain a conviction
for exhibition of "privates" in the presence of others.
The court traced the offense to the Bible story of
Adam and Eve.  Id. at 329-330. In 1881, a statute was
enacted that would remain essentially unchanged for
nearly a century:
"Whoever, being over fourteen years of age, makes an
indecent exposure of his person in a public place, or in
any place where there are other persons to be
offended or annoyed thereby, . . . is guilty of public
indecency. . . ."
1881 Ind.Acts, ch. 37, § 90. 
Page 501 U. S. 569
The language quoted above remained unchanged
until it was simultaneously repealed and replaced with
the present statute in 1976. 1976 Ind.Acts, Pub.L. 148,
Art. 45, ch. 4, § 1. [Footnote 2]
This and other public indecency statutes were
designed to protect morals and public order. The
traditional police power of the States is defined as the
authority to provide for the public health, safety, and
morals, and we have upheld such a basis for
legislation.  In Paris Adult Theatre I v. Slaton, 413 U. S.
49,  413 U. S. 61 (1973), we said:
"In deciding Roth [v. United States, 354 U. S.
476 (1957)], this Court implicitly accepted that a
legislature could legitimately act on such a conclusion
to protect 'the social interest in order and morality.'
[Id.] at  354 U. S. 485."
(Emphasis omitted.) And in Bowers v. Hardwick, 478 U.
S. 186,  478 U. S. 196 (1986), we said:
"The law, however, is constantly based on notions of
morality, and if all laws representing essentially moral
choices are to be invalidated under the Due Process
Clause, the courts will be very busy indeed."
Thus, the public indecency statute furthers a
substantial government interest in protecting order
and morality.
Page 501 U. S. 570
173
This interest is unrelated to the suppression of free
expression. Some may view restricting nudity on
moral grounds as necessarily related to expression.
We disagree. It can be argued, of course, that almost
limitless types of conduct -- including appearing in the
nude in public -- are "expressive," and in one sense of
the word this is true. People who go about in the nude
in public may be expressing something about
themselves by so doing. But the court rejected this
expansive notion of "expressive conduct"
in O'Brien, saying:
"We cannot accept the view that an apparently
limitless variety of conduct can be labelled 'speech'
whenever the person engaging in the conduct intends
thereby to express an idea."
391 U.S. at  391 U. S. 376.
And in Dallas v. Stanglin, 490 U. S. 19, we further
observed:
"It is possible to find some kernel of expression in
almost every activity a person undertakes -- for
example, walking down the street or meeting one's
friends at a shopping mall -- but such a kernel is not
sufficient to bring the activity within the protection of
the First Amendment. We think the activity of these
dance-hall patrons coming together to engage in
recreational dancing -- is not protected by the First
Amendment."
490 U.S. 19,  490 U. S. 25.
Respondents contend that, even though prohibiting
nudity in public generally may not be related to
suppressing expression, prohibiting the performance
of nude dancing is related to expression because the
state seeks to prevent its erotic message. Therefore,
they reason that the application of the Indiana statute
to the nude dancing in this case violates the First
Amendment, because it fails the third part of
the O'Brien test, viz: the governmental interest must
be unrelated to the suppression of free expression.
But we do not think that, when Indiana applies its
statute to the nude dancing in these nightclubs it is
proscribing nudity because of the erotic message
conveyed by the dancers.
Page 501 U. S. 571
Presumably numerous other erotic performances are
presented at these establishments and similar clubs
without any interference from the state, so long as the
performers wear a scant amount of clothing. Likewise,
the requirement that the dancers don pasties and a G-
string does not deprive the dance of whatever erotic
174
message it conveys; it simply makes the message
slightly less graphic. The perceived evil that Indiana
seeks to address is not erotic dancing, but public
nudity. The appearance of people of all shapes, sizes
and ages in the nude at a beach, for example, would
convey little if any erotic message, yet the state still
seeks to prevent it. Public nudity is the evil the state
seeks to prevent, whether or not it is combined with
expressive activity.
This conclusion is buttressed by a reference to the
facts of O'Brien. An act of Congress provided that
anyone who knowingly destroyed a selective service
registration certificate committed an offense. O'Brien
burned his certificate on the steps of the South Boston
Courthouse to influence others to adopt his anti-war
beliefs. This Court upheld his conviction, reasoning
that the continued availability of issued certificates
served a legitimate and substantial purpose in the
administration of the selective service system.
O'Brien's deliberate destruction of his certificate
frustrated this purpose and "for this
noncommunicative aspect of his conduct, and for
nothing else, he was convicted." 391 U.S. at  391 U. S.
382. It was assumed that O'Brien's act in burning the
certificate had a communicative element in it sufficient
to bring into play the First Amendment, 391 U.S.
at  391 U. S. 382, but it was for the noncommunicative
element that he was prosecuted. So here with the
Indiana statute; while the dancing to which it was
applied had a communicative element, it was not the
dancing that was prohibited, but simply its being done
in the nude.
The fourth part of the O'Brien test requires that the
incidental restriction on First Amendment freedom be
no greater than is essential to the furtherance of the
governmental interest. As indicated in the discussion
above, 
Page 501 U. S. 572
the governmental interest served by the text of the
prohibition is societal disapproval of nudity in public
places and among strangers. The statutory prohibition
is not a means to some greater end, but an end in
itself. It is without cavil that the public indecency
statute is "narrowly tailored;" Indiana's requirement
that the dancers wear at least pasties and a G-string is
modest, and the bare minimum necessary to achieve
the state's purpose.
The judgment of the Court of Appeals accordingly is
Reversed.
[Footnote 1]
175
The Indiana Supreme Court appeared to give the
public indecency statute a limiting construction to save
it from a facial overbreadth attack:
"There is no right to appear nude in public. Rather,
it may be constitutionally required to tolerate or to
allow some nudity as a part of some larger form of
expression meriting protection, when the
communication of ideas is involved."
State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580,
587 (1979) (emphasis added), appeals dism'd sub
nom. Clark v. Indiana, 446 U.S. 931, and Dove v.
Indiana, 449 U.S. 806 (1980).
Five years after Baysinger, however, the Indiana
Supreme Court reversed a decision of the Indiana
Court of Appeals holding that the statute did "not
apply to activity such as the theatrical appearances
involved herein, which may not be prohibited absent a
finding of obscenity," in a case involving a partially
nude dance in the "Miss Erotica of Fort Wayne"
contest.  Erhardt v. State,468 N.E.2d 224 (Ind.1984).
The Indiana Supreme Court did not discuss the
constitutional issues beyond a cursory comment that
the statute had been upheld against constitutional
attack in Baysinger, and Erhardt's conduct fell within
the statutory prohibition. Justice Hunter dissented,
arguing that
"a public indecency statute which prohibits nudity in
any public place is unconstitutionally overbroad. My
reasons for so concluding have already been
articulated in State v. Baysinger,(1979) 272 Ind. 236,
397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting)."
Id. at 225-226, 397 N.E.2d 580. Justice DeBruler
expressed similar views in his dissent in
Erhardt. Ibid. Therefore, the Indiana Supreme Court
did not affirmatively limit the reach of the statute
in Baysinger, but merely said that, to the extent the
First Amendment would require it, the statute might
be unconstitutional as applied to some activities.
[Footnote 2]
Indiana Code § 35-451 (1988) provides:
"Public Indecency"
"Sec. 1. (a) A person who knowingly or intentionally, in
a public place:"
"(1) engages in sexual intercourse;"
"(2) engages in deviate sexual conduct;"
"(3) appears in a state of nudity; or"
176
"(4) fondles the genitals of himself or another person;"
"commits public indecency, a Class A misdemeanor."
"(b) 'Nudity' means the showing of the human male or
female genitals, pubic area, or buttocks with less than
a fully opaque covering, the showing of the female
breast with less than a fully opaque covering of any
part of the nipple, or the showing of the covered male
genitals in a discernibly turgid state."
JUSTICE SCALIA, concurring in the judgment.
I agree that the judgment of the Court of Appeals
must be reversed. In my view, however, the challenged
regulation must be upheld, not because it survives
some lower level of First-Amendment scrutiny, but
because, as a general law regulating conduct and not
specifically directed at expression, it is not subject to
First-Amendment scrutiny at all.
I
Indiana's public indecency statute provides:
"(a) A person who knowingly or intentionally, in a
public place:"
"(1) engages in sexual intercourse;"
"(2) engages in deviate sexual conduct;"
"(3) appears in a state of nudity; or"
"(4) fondles the genitals of himself or another person;"
"commits public indecency, a Class A misdemeanor."
"(b) 'Nudity' means the showing of the human male or
female genitals, pubic area, or buttocks with less than
a fully opaque covering, the showing of the female
breast with less than a fully opaque covering of any
part of the nipple, or the showing of covered male
genitals in a discernibly turgid state."
Ind.Code § 35-45-4-1 (1988). On its face, this law is not
directed at expression in particular. As Judge
Easterbrook put it in his dissent below:
"Indiana 
Page 501 U. S. 573
does not regulate dancing. It regulates public nudity. . .
. Almost the entire domain of Indiana's statute is
unrelated to expression, unless we view nude beaches
and topless hot dog vendors as speech."
177
Miller v. Civil City of South Bend, 904 F.2d 1081, 1120
(CA7 1990) (Easterbrook, J., dissenting). The intent to
convey a "message of eroticism" (or any other
message) is not a necessary element of the statutory
offense of public indecency; nor does one commit that
statutory offense by conveying the most explicit
"message of eroticism," so long as he does not commit
any of the four specified acts in the process. [Footnote
2/1]
Indiana's statute is in the line of a long tradition of
laws against public nudity, which have never been
thought to run afoul of traditional understanding of
"the freedom of speech." Public indecency -- including
public nudity -- has long been an offense at common
law.  See 50 Am.Jur.2d 449, 472-474 (1970); 93 A.L.R.
996, 997-998 (1934); Winters v. New York, 333 U. S.
507, 333 U. S. 515 (1948). Indiana's first public nudity
statute, Rev.Laws of Indiana, ch. 26, § 60 (1831),
predated by many years the appearance of nude
barroom dancing. It was general in scope, directed at
all public nudity, and not just at public nude
expression; and all succeeding statutes, down to  591, that the purpose of restricting nudity in public
Page 501 U. S. 574
the present one, have been the same. Were it the case
that Indiana in practice targeted only expressive
nudity, while turning a blind eye to nude beaches and
unclothed purveyors of hot dogs and machine
tools, see Miller, 904 F.2d at 1120, 1121, it might be
said that what posed as a regulation of conduct in
general was in reality a regulation of only
communicative conduct. Respondents have adduced
no evidence of that. Indiana officials have brought
many public indecency prosecutions for activities
having no communicative element.  See Bond v.
State, 515 N.E.2d 856, 857 (Ind.1987); In re
Levinson, 444 N.E.2d 1175, 1176 (Ind.1983); Preston v.
State, 259 Ind. 353, 354-355, 287 N.E.2d 347, 348
(1972); Thomas v. State, 238 Ind. 658, 659-660, 154
N.E.2d 503, 504-505 (1958); Blanton v. State, 533
N.E.2d 190, 191 (Ind.App.1989); Sweeney v. State, 486
N.E.2d 651, 652 (Ind.App.1985); Thompson v.
State, 482 N.E.2d 1372, 1373-1374
(Ind.App.1985); Adims v. State, 461 N.E.2d 740, 741-
742 (Ind.App.1984); State v. Elliott, 435 N.E.2d 302, 304
(Ind.App.1982); Lasko v. State, 409 N.E.2d 1124, 1126
(Ind.App.1980). [Footnote 2/2]
The dissent confidently asserts, post at  501 U. S. 590-
places in general is to protect nonconsenting parties
from offense; and argues that, since only consenting,
admission-paying patrons see respondents dance,
that purpose cannot apply, and the only remaining
purpose must relate to the communicative elements
178
of the performance. Perhaps the dissenters believe
that "offense to others" ought to be the only reason
for restricting nudity in public places generally, but
there is no  homosexual sodomy enacted solely on "the presumed
Page 501 U. S. 575
basis for thinking that our society has ever shared that
Thoreauvian "you may do what you like so long as it
does not injure someone else" beau ideal -- much less
for thinking that it was written into the Constitution.
The purpose of Indiana's nudity law would be violated,
I think, if 60,000 fully consenting adults crowded into
the Hoosierdome to display their genitals to one
another, even if there were not an offended innocent
in the crowd. Our society prohibits, and all human
societies have prohibited, certain activities not
because they harm others but because they are
considered, in the traditional phrase, "contra bonos
mores," i.e., immoral. In American society, such
prohibitions have included, for example,
sadomasochism, cockfighting, bestiality, suicide, drug
use, prostitution, and sodomy. While there may be
great diversity of view on whether various of these
prohibitions should exist (though I have found few
ready to abandon, in principle, all of them) there is no
doubt that, absent specific constitutional protection
for the conduct involved, the Constitution does not
prohibit them simply because they regulate
"morality."  See Bowers v. Hardwick, 478 U. S. 186,  478
U. S. 196 (1986) (upholding prohibition of private
belief of a majority of the electorate in [the
jurisdiction] that homosexual sodomy is immoral and
unacceptable").  See also Paris Adult Theatre I v.
Slaton, 413 U. S. 49,  413 U. S. 68, n. 15
(1973); Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238,
and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) (opinion
of Bork, J.). The purpose of the Indiana statute, as both
its text and the manner of its enforcement
demonstrate, is to enforce the traditional moral belief
that people should not expose their private parts
indiscriminately, regardless of whether those who see
them are disedified. Since that is so, the dissent has
no basis for positing that, where only thoroughly
edified adults are present, the purpose must be
repression of communication. [Footnote 2/3] 
Page 501 U. S. 576
II
Since the Indiana regulation is a general law not
specifically targeted at expressive conduct, its
application to such conduct does not, in my view,
implicate the First Amendment.
179
The First Amendment explicitly protects "the freedom
of speech [and] of the press" -- oral and written
speech -- not "expressive conduct." When any law
restricts speech, even for a purpose that has nothing
to do with the suppression of communication (for
instance, to reduce noise, see Saia v. New York, 334 U.
S. 558, 334 U. S. 561 (1948), to regulate election
campaigns, see Buckley v. Valeo, 424 U. S. 1,  424 U. S.
16 (1976), or to prevent littering, see Schneider v.
State, 308 U. S. 147,  308 U. S. 163 (1939)), we insist
that it meet the high First-Amendment standard of
justification. But virtually every law restricts conduct,
and virtually any prohibited conduct can be performed
for an expressive purpose -- if only expressive of the
fact that the actor disagrees with the prohibition.  See,
e.g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608,
609 (1984) (nude sunbathers challenging public
indecency law claimed their "message" was that nudity
is not indecent). It cannot reasonably be demanded,
therefore, that every restriction of expression
incidentally produced by a general law regulating
conduct pass normal First Amendment scrutiny, or
even -- as some of our cases have suggested, see e.g.,
United States v. O'Brien, 391 U. S. 367,  391 U. S.
377 (1968) -- that it be justified by an "important or
substantial"  incidental effect of forbidding the conduct for other
Page 501 U. S. 577
government interest. Nor do our holdings require
such justification: we have never invalidated the
application of a general law simply because the
conduct that it reached was being engaged in for
expressive purposes and the government could not
demonstrate a sufficiently important state interest.
This is not to say that the First Amendment affords no
protection to expressive conduct. Where the
government prohibits conduct precisely because of its
communicative attributes, we hold the regulation
unconstitutional.  See, e.g., United States v.
Eichman, 496 U. S. 310 (1990) (burning flag); Texas v.
Johnson, 491 U. S. 397 (1989) (same); Spence v.
Washington, 418 U. S. 405 (1974) (defacing flag); Tinker
v. Des Moines Independent Community School
District, 393 U. S. 503 (1969) (wearing black arm
bands); Brown v. Louisiana, 383 U. S. 131 (1966)
(participating in silent sit-in); Stromberg v.
California, 283 U. S. 359 (1931) (flying a red flag).
[Footnote 2/4] In each of the foregoing cases, we
explicitly found that suppressing communication was
the object of the regulation of conduct. Where that
has not been the case, however -- where suppression
of communicative use of the conduct was merely the
reasons -- we have allowed the regulation to
stand.  O'Brien, 391 U.S. at  391 U. S. 377 (law banning
180
destruction of draft card upheld in application against
card-burning to protest  discussion) support the conclusion that
Page 501 U. S. 578
war); FTC v. Superior Court Trial Lawyers Assn., 493 U.
S. 411 (1990) (Sherman Act upheld in application
against restraint of trade to protest low pay); cf.
United States v. Albertini, 472 U. S. 675,  472 U. S. 687-
688 (1985) (rule barring petitioner from military base
upheld in application against entrance on base to
protest war); Clark v. Community for Creative Non-
Violence, 468 U. S. 288 (1984) (rule barring sleeping in
parks upheld in application against persons engaging
in such conduct to dramatize plight of homeless). As
we clearly expressed the point in Johnson:
"The government generally has a freer hand in
restricting expressive conduct than it has in restricting
the written or spoken word. It may not, however,
proscribe particular conduct because it has expressive
elements. What might be termed the more
generalized guarantee of freedom of expression
makes the communicative nature of conduct an
inadequate basis for singling out that conduct for
proscription."
491 U.S. at  491 U. S. 406 (internal quotations and
citations omitted; emphasis in original).
All our holdings (though admittedly not some of our
"the only First Amendment analysis applicable to laws
that do not directly or indirectly impede speech is the
threshold inquiry of whether the purpose of the law is
to suppress communication. If not, that is the end of
the matter so far as First Amendment guarantees are
concerned; if so, the court then proceeds to determine
whether there is substantial justification for the
proscription."
Community for Creative Non-Violence v. Watt, 227
U.S.App.D.C.19, 55-56, 703 F.2d 586, 622-623 (1983)
(en banc) (Scalia, J., dissenting) (footnote omitted;
emphasis omitted), rev'd,  468 U. S. Community for
Creative Non-Violence, 468 U. S. 288 (1984). Such a
regime ensures that the government does not act to
suppress communication, without requiring that all
conduct-restricting regulation 
Page 501 U. S. 579
(which means in effect all regulation) survive an
enhanced level of scrutiny.
We have explicitly adopted such a regime in another
First Amendment context: that of Free Exercise.
In Employment Division, Oregon Dept. of Human
181
Resources v. Smith, 494 U. S. 872 (1990), we held that
general laws not specifically targeted at religious
practices did not require heightened First Amendment
scrutiny even though they diminished some people's
ability to practice their religion.
"The government's ability to enforce generally
applicable prohibitions of socially harmful conduct,
like its ability to carry out other aspects of public
policy, 'cannot depend on measuring the effects of a
governmental action on a religious objector's spiritual
development.'"
Id. at  494 U. S. 885, quoting Lyng v. Northwest Indian
Cemetery Protective Assn., 485 U. S. 439,  485 U. S.
451 (1988); see also Minersville School District v.
Gobitis, 310 U. S. 586,  310 U. S. 594-595 (1940)
(Frankfurter, J.) ("Conscientious scruples have not, in
the course of the long struggle for religious toleration,
relieved the individual from obedience to a general
law not aimed at the promotion or restriction of
religious beliefs."). There is even greater reason to
apply this approach to the regulation of expressive
conduct. Relatively few can plausibly assert that their
illegal conduct is being engaged in for religious
reasons; but almost anyone can violate almost any law
as a means of expression. In the one case, as in the
other, if the law is not directed against the protected
value (religion or expression) the law must be obeyed.
III
While I do not think the plurality's conclusions differ
greatly from my own, I cannot entirely endorse its
reasoning. The plurality purports to apply to this
general law, insofar as it regulates this allegedly
expressive conduct, an intermediate level of First
Amendment scrutiny: the government interest in the
regulation must be "important or
substantial,'" ante at  501 U. S. 567,
quoting O'Brien, 391 U.S. at  391 U. S. 377. As I have
indicated, 
Page 501 U. S. 580
I do not believe such a heightened standard exists. I
think we should avoid wherever possible, moreover, a
method of analysis that requires judicial assessment
of the "importance" of government interests -- and
especially of government interests in various aspects
of morality.
Neither of the cases that the plurality cites to support
the "importance" of the State's interest here, see
ante at  501 U. S. 569, is in point.  Paris Adult Theatre I
182
v. Slaton, 413 U.S. at  413 U. S. 61, and Bowers v. Indiana may constitutionally enforce its prohibition of
Hardwick, 478 U.S. at  478 U. S. 196, did uphold laws public nudity even against those who choose to use
prohibiting private conduct based on concerns of public nudity as a means of communication. The State
decency and morality; but neither opinion held that is regulating conduct, not expression, and those who
those concerns were particularly "important" or choose to employ conduct
"substantial," or amounted to anything more than
a rational basis for regulation. Slaton involved an Page 501 U. S. 581
exhibition which, since it was obscene and at least to
some extent public, was unprotected by the First as a means of expression must make sure that the
Amendment, see Roth v. United States, 354 U. S. conduct they select is not generally forbidden. For
476 (1957); the State's prohibition could therefore be these reasons, I agree that the judgment should be
invalidated only if it had no rational basis. We found reversed.
that the State's "right . . . to maintain a decent society"
[Footnote 2/1]
provided a "legitimate" basis for regulation -- even as
to obscene material viewed by consenting adults. 413
Respondents assert that the statute cannot be
U.S. at  413 U. S. 59-60. In Bowers, we held that, since
characterized as a general regulation of conduct,
homosexual behavior is not a fundamental right, a
unrelated to suppression of expression, because one
Georgia law prohibiting private homosexual
defense put forward in oral argument below by the
intercourse needed only a rational basis in order to
attorney general referred to the "message of
comply with the Due Process Clause. Moral opposition
eroticism" conveyed by respondents. But that
to homosexuality, we said, provided that rational
argument seemed to go to whether the statute could
basis. 478 U.S. at  478 U. S. 196. I would uphold the
constitutionally be applied to the present
Indiana statute on precisely the same ground: moral
performances, rather than to what was the purpose of
opposition to nudity supplies a rational basis for its
the legislation. Moreover, the State's argument below
prohibition, and since the First Amendment has no
was in the alternative: (1) that the statute does not
application to this case, no more than that is needed.
implicate the First Amendment because it is a neutral
rule not directed at expression, and (2) that the statute
****
in any event survives First Amendment scrutiny

183
because of the State's interest in suppressing nude
barroom dancing. The second argument can be
claimed to contradict the first (though I think it does
not); but it certainly does not waive or abandon it. In
any case, the clear purpose shown by both the text
and historical use of the statute cannot be refuted by
a litigating statement in a single case.
[Footnote 2/2]
Respondents also contend that the statute, as
interpreted, is not content-neutral in the expressive
conduct to which it applies, since it allegedly does not
apply to nudity in theatrical productions.  See State v.
Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587
(1979). I am not sure that theater versus non-theater
represents a distinction based on content, rather than
format, but assuming that it does, the argument
nonetheless fails for the reason the plurality
describes, ante at  501 U. S. 564, n. 1.
[Footnote 2/3]
The dissent, post at  501 U. S. 590,  501 U. S. 595-596
also misunderstands what is meant by the term
"general law." I do not mean that the law restricts the
targeted conduct in all places at all times. A law is
"general" for the present purposes if it regulates
conduct without regard to whether that conduct is
expressive. Concededly, Indiana bans nudity in public
places, but not within the privacy of the home. (That is
not surprising, since the common law offense, and the
traditional moral prohibition, runs
against public nudity, not against all nudity.  E.g., 50
Am.Jur.2d at 472-474.) But that confirms, rather than
refutes, the general nature of the law: one may not go
nude in public, whether or not one intends thereby to
convey a message, and similarly one may go nude in
private, again whether or not that nudity is expressive.
[Footnote 2/4]
It is easy to conclude that conduct has been forbidden
because of its communicative attributes when the
conduct in question is what the Court has called
"inherently expressive," and what I would prefer to call
"conventionally expressive" -- such as flying a red flag.
I mean by that phrase (as I assume the Court means
by "inherently expressive") conduct that is normally
engaged in for the purpose of communicating an idea,
or perhaps an emotion, to someone else. I am not
sure whether dancing fits that description, see Dallas
v. Stanglin, 490 U. S. 19,  490 U. S. 24 (1989) (social
dance group "do[es] not involve the sort of expressive
association that the First Amendment has been held
to protect"). But even if it does, this law is directed
against nudity, not dancing. Nudity is not normally
184
engaged in for the purpose of communicating an idea
or an emotion.
JUSTICE SOUTER, concurring in the judgment.
Not all dancing is entitled to First Amendment
protection as expressive activity. This Court has
previously categorized ballroom dancing as beyond
the Amendment's protection, Dallas v. Stanglin, 490 U.
S. 19,  490 U. S. 24-25 (1989), and dancing as aerobic
exercise would likewise be outside the First
Amendment's concern. But dancing as a performance
directed to an actual or hypothetical audience gives
expression at least to generalized emotion or feeling,
and where the dancer is nude or nearly so, the feeling
expressed, in the absence of some contrary clue, is
eroticism, carrying an endorsement of erotic
experience. Such is the expressive content of the
dances described in the record.
Although such performance dancing is inherently
expressive, nudity per se is not. It is a condition, not an
activity, and the voluntary assumption of that
condition, without more, apparently expresses
nothing beyond the view that the condition is
somehow appropriate to the circumstances. But every
voluntary act implies some such idea, and the
implication is thus so common and minimal that
calling all voluntary activity expressive would reduce
the concept of expression to the point of the
meaningless. A search for some expression beyond
the minimal in the choice to go nude will often yield
nothing: a person may choose nudity, for example, for
maximum sunbathing. But when nudity is combined
with expressive activity, its stimulative and attractive
value certainly can enhance the force of expression,
and a dancer's acts in going from clothed to nude, as
in a strip-tease, are integrated into the dance and its
expressive function. Thus, I agree with the plurality
and the dissent that an interest in freely engaging in
the nude dancing at issue here is subject to a degree
of First Amendment protection. 
Page 501 U. S. 582
I also agree with the plurality that the appropriate
analysis to determine the actual protection required
by the First Amendment is the four-part enquiry
described in United States v. O'Brien,391 U. S.
367 (1968), for judging the limits of appropriate state
action burdening expressive acts as distinct from pure
speech or representation. I nonetheless write
separately to rest my concurrence in the judgment,
not on the possible sufficiency of society's moral views
to justify the limitations at issue, but on the State's
substantial interest in combating the secondary
185
effects of adult entertainment establishments of the
sort typified by respondents' establishments.
It is, of course, true that this justification has not been
articulated by Indiana's legislature or by its courts. As
the plurality observes, "Indiana does not record
legislative history, and the state's highest court has
not shed additional light on the statute's
purpose," ante at  501 U. S. 568. While it is certainly
sound in such circumstances to infer general purposes
"of protecting societal order and morality . . . from [the
statute's] text and history," ibid., I think that we need
not so limit ourselves in identifying the justification for
the legislation at issue here, and may legitimately
consider petitioners' assertion that the statute is
applied to nude dancing because such dancing
"encourag[es] prostitution, increas[es] sexual assaults,
and attract[s] other criminal activity." Brief for
Petitioners 37.
This asserted justification for the statute may not be
ignored merely because it is unclear to what extent
this purpose motivated the Indiana Legislature in
enacting the statute. Our appropriate focus is not an
empirical enquiry into the actual intent of the enacting
legislature, but rather the existence or not of a current
governmental interest in the service of which the
challenged application of the statute may be
constitutional.  Cf. McGowan v. Maryland, 366 U. S.
420
Page 501 U. S. 583
(1961). At least as to the regulation of expressive
conduct, [Footnote 3/1]
"[w]e decline to void [a statute] essentially on the
ground that it is unwise legislation which [the
legislature] had the undoubted power to enact and
which could be reenacted in its exact form if the same
or another legislator made a 'wiser' speech about it."
O'Brien, supra, 391 U.S. at  391 U. S. 384. In my view,
the interest asserted by petitioners in preventing
prostitution, sexual assault, and other criminal activity,
although presumably not a justification for all
applications of the statute, is sufficient
under O'Brien to justify the State's enforcement of the
statute against the type of adult entertainment at
issue here.
At the outset, it is clear that the prevention of such
evils falls within the constitutional power of the State,
which satisfies the first O'Brien criterion.  See
id. at  391 U. S. 377. The second O'Brien prong asks
whether the regulation "furthers an important or
substantial governmental interest." Ibid. The asserted
186
state interest is plainly a substantial one; the only
question is whether prohibiting nude dancing of the
sort at issue here "furthers" that interest. I believe that
our cases have addressed this question sufficiently to
establish that it does.
In Renton v. Playtime Theatres, Inc., 475 U. S.
41 (1986), we upheld a city's zoning ordinance
designed to prevent the occurrence of harmful
secondary effects, including the crime associated with
adult entertainment by protecting approximately 95%
of the city's area from the placement of motion picture
theaters emphasizing "matter depicting, describing or
relating to "specified sexual activities" or "specified
anatomical areas" . . . for observation by patrons
therein.'" Id. at  475 U. S. 44. Of particular importance
to the present enquiry, we held that the city of Renton
was not compelled to justify its restrictions by studies
specifically relating to the problems  establishment); United States v. Doerr, 886 F.2d 944,
Page 501 U. S. 584
that would be caused by adult theaters in that city.
Rather, "Renton was entitled to rely on the
experiences of Seattle and other cities," id. at  475 U. S.
51, which demonstrated the harmful secondary effects
correlated with the presence "of even one [adult]
theater in a given neighborhood." Id. at  475 U. S.
50; cf. Young v. American Mini Theatres, Inc., 427 U. S.
50,  427 U. S. 71, n. 34 (1976) (legislative finding that "a
concentration of `adult' movie theaters causes the
area to deteriorate and become a focus of
crime"); California v. LaRue, 409 U. S. 109,  409 U. S.
111 (1972) (administrative findings of criminal activity
associated with adult entertainment).
The type of entertainment respondents seek to
provide is plainly of the same character as that at
issue in Renton, American Mini Theatres, and LaRue. It
therefore is no leap to say that live nude dancing of
the sort at issue here is likely to produce the same
pernicious secondary effects as the adult films
displaying "specified anatomical areas" at issue
in Renton. Other reported cases from the Circuit in
which this litigation arose confirm the conclusion.  See,
e.g., United States v. Marren, 890 F.2d 924, 926 (CA7
1989) (prostitution associated with nude dancing
949 (CA7 1989) (same). In light of Renton's recognition
that legislation seeking to combat the secondary
effects of adult entertainment need not await localized
proof of those effects, the State of Indiana could
reasonably conclude that forbidding nude
entertainment of the type offered at the Kitty Kat
Lounge and the Glen Theatre's "bookstore" furthers its
interest in preventing prostitution, sexual assault, and
associated crimes. Given our recognition that
187
"society's interest in protecting this type of expression
is of a wholly different, and lesser, magnitude than the
interest in untrammeled political debate,"
American Mini Theatres, supra, 427 U.S. at  427 U. S.
70, I do not believe that a State is required
affirmatively to undertake to litigate this issue
repeatedly in every  theory of Indiana's regulatory justification is not. To
Page 501 U. S. 585
case. The statute as applied to nudity of the sort at
issue here therefore satisfies the second prong
of O'Brien. [Footnote 3/2]
The third O'Brien condition is that the governmental
interest be "unrelated to the suppression of free
expression," 391 U.S. at  391 U. S. 377, and, on its face,
the governmental interest in combating prostitution
and other criminal activity is not at all inherently
related to expression. The dissent contends, however,
that Indiana seeks to regulate nude dancing as its
means of combating such secondary effects
"because . . . creating or emphasizing [the] thoughts
and ideas [expressed by nude dancing] in the minds of
the spectators may lead to increased prostitution,"
post at  501 U. S. 592, and that regulation of
expressive conduct because of the fear that the
expression will prove persuasive is inherently related
to the suppression of free expression.  Ibid.
The major premise of the dissent's reasoning may be
correct, but its minor premise describing the causal
say that pernicious secondary effects are associated
with nude dancing establishments is not necessarily to
say that such effects result from the persuasive effect
of the expression inherent in nude dancing. It is to say,
rather, only that the effects are correlated with the
existence of establishments offering such dancing,
without deciding what the precise causes of the
correlation
Page 501 U. S. 586
actually are. It is possible, for example, that the higher
incidence of prostitution and sexual assault in the
vicinity of adult entertainment locations results from
the concentration of crowds of men predisposed to
such activities, or from the simple viewing of nude
bodies, regardless of whether those bodies are
engaged in expression or not. In neither case would
the chain of causation run through the persuasive
effect of the expressive component of nude dancing.
188
Because the State's interest in banning nude dancing
results from a simple correlation of such dancing with
other evils, rather than from a relationship between
the other evils and the expressive component of the
dancing, the interest is unrelated to the suppression
of free expression.  Renton is again persuasive in
support of this conclusion. In Renton, we held that an
ordinance that regulated adult theaters because the
presence of such theaters was correlated with
secondary effects that the local government had an
interest in regulating was content-neutral (a
determination similar to the "unrelated to the
suppression of free expression" determination
here, see Clark v. Community for Creative Non-
Violence, 468 U. S. 288,  468 U. S. 298, and n. 8 (1984))
because it was "justified without reference to the
content of the regulated speech." 475 U.S. at  475 U. S.
48 (emphasis in original). We reached this conclusion
without need to decide whether the cause of the
correlation might have been the persuasive effect of
the adult films that were being regulated. Similarly
here, the "secondary effects" justification means that
enforcement of the Indiana statute against nude
dancing is "justified without reference to the content
of the regulated [expression]," ibid. (emphasis
omitted), which is sufficient, at least in the context of
sexually explicit expression, [Footnote 3/3] to satisfy
the third prong of the O'Brien test. 
Page 501 U. S. 587
The fourth O'Brien condition, that the restriction be no
greater than essential to further the governmental
interest, requires little discussion. Pasties and a G-
string moderate the expression to some degree, to be
sure, but only to a degree. Dropping the final stitch is
prohibited, but the limitation is minor when measured
against the dancer's remaining capacity and
opportunity to express the erotic message. Nor, so far
as we are told, is the dancer or her employer limited
by anything short of obscenity laws from expressing
an erotic message by articulate speech or
representational means; a pornographic movie
featuring one of respondents, for example, was
playing nearby without any interference from the
authorities at the time these cases arose.
Accordingly, I find O'Brien satisfied, and concur in the
judgment.
[Footnote 3/1]
Cf., e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)
(striking down state statute on Establishment Clause
grounds due to impermissible legislative intent).
[Footnote 3/2]
189
Because there is no overbreadth challenge before us,
we are not called upon to decide whether the
application of the statute would be valid in other
contexts. It is enough, then, to say that the secondary
effects rationale on which I rely here would be open to
question if the State were to seek to enforce the
statute by barring expressive nudity in classes of
productions that could not readily be analogized to
the adult films at issue in Renton v. Playtime Theatres,
Inc., 475 U. S. 41(1986). It is difficult to see, for
example, how the enforcement of Indiana's statute
against nudity in a production of "Hair" or "Equus"
somewhere other than an "adult" theater would
further the State's interest in avoiding harmful
secondary effects, in the absence of evidence that
expressive nudity outside the context of Renton-type
adult entertainment was correlated with such
secondary effects.
[Footnote 3/3]
I reach this conclusion again mindful, as was the Court
in Renton, that the protection of sexually explicit
expression may be of lesser societal importance than
the protection of other forms of expression.  See
Renton, supra, at  475 U. S. 49, and n. 2, citing Young v.
American Mini Theatres, Inc.,427 U. S. 50,  427 U. S.
70 (1976).
JUSTICE WHITE, with whom JUSTICE MARSHALL,
JUSTICE BLACKMUN, and JUSTICE STEVENS join,
dissenting.
The first question presented to us in this case is
whether nonobscene nude dancing performed as
entertainment is expressive conduct protected by the
First Amendment. The Court of Appeals held that it is,
observing that our prior decisions permit no other
conclusion. Not surprisingly, then, the Court now
concedes that "nude dancing of the kind sought to be
performed here is expressive conduct within the outer
perimeters of the First Amendment. . . ."  Ante at  501
U. S. 566. This is no more than recognizing, as the
Seventh Circuit observed, that dancing is an ancient
art form and "inherently embodies the expression and
communication of ideas and emotions."  Miller v. Civil
City of South Bend, 904 F.2d 1081, 1087 (1990) (en
banc). [Footnote 4/1] 
Page 501 U. S. 588
Having arrived at the conclusion that nude dancing
performed as entertainment enjoys First Amendment
protection, the Court states that it must
"determine the level of protection to be afforded to
the expressive conduct at issue, and must determine
190
whether the Indiana statute is an impermissible
infringement of that protected activity."
Ante at  501 U. S. 566. For guidance, the plurality turns
to United States v. O'Brien, 391 U. S. 367(1968), which
held that expressive conduct could be narrowly
regulated or forbidden in pursuit of an important or
substantial governmental interest that is unrelated to
the content of the expression. The plurality finds that
the Indiana statute satisfies the O'Brien test in all
respects.
The plurality acknowledges that it is impossible to
discern the exact state interests which the Indiana
legislature had in mind when it enacted the Indiana
statute, but the Court nonetheless concludes that it is
clear from the statute's text and history that the law's
purpose is to protect "societal order and
morality."  Ante at  501 U. S. 568. The plurality goes on
to  including the home, as was true in that case. The same
Page 501 U. S. 589
conclude that Indiana's statute "was enacted as a
general prohibition," ante at  501 U. S. 568(emphasis
added), on people appearing in the nude among
strangers in public places. The plurality then points to
cases in which we upheld legislation based on the
State's police power, and ultimately concludes that the
Indiana statute "furthers a substantial government
interest in protecting order and morality."  Ante at
569. The plurality also holds that the basis for banning
nude dancing is unrelated to free expression, and that
it is narrowly drawn to serve the State's interest.
The plurality's analysis is erroneous in several
respects. Both the Court and JUSTICE SCALIA in his
concurring opinion overlook a fundamental and
critical aspect of our cases upholding the States'
exercise of their police powers. None of the cases they
rely upon, including O'Brien and Bowers v.
Hardwick, 478 U. S. 186 (1986), involved anything less
than truly general proscriptions on individual conduct.
In O'Brien, for example, individuals were prohibited
from destroying their draft cards at any time and in
any place, even in completely private places such as
the home. Likewise, in Bowers, the State prohibited
sodomy, regardless of where the conduct might occur,
is true of cases like Employment Division, Oregon
Dept. of Human Resources v. Smith, 494 U. S.
872 (1990), which, though not applicable here because
it did not involve any claim that the peyote users were
engaged in expressive activity, recognized that the
State's interests in preventing the use of illegal drugs
extends even into the home. By contrast, in this case,
Indiana does not suggest that its statute applies to, or
191
could be applied to, nudity wherever it occurs,
including the home. We do not understand the Court
or JUSTICE SCALIA to be suggesting that Indiana could
constitutionally enact such an intrusive prohibition,
nor do we think such a suggestion would be tenable in
light of our decision in Stanley v. Georgia, 394 U. S.
557, (1969), in which we held that States could not
punish the  and morality is not sufficient justification for a statute
Page 501 U. S. 590
mere possession of obscenity in the privacy of one's
own home.
We are told by the Attorney General of Indiana that,
in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580
(1979), the Indiana Supreme Court held that the
statute at issue here cannot and does not prohibit
nudity as a part of some larger form of expression
meriting protection when the communication of ideas
is involved. Brief for Petitioners 25, 30-31; Reply Brief
for Petitioners 9-11. Petitioners also state that the evils
sought to be avoided by applying the statute in this
case would not obtain in the case of theatrical
productions, such as Salome or Hair.  Id. at 11-12.
Neither is there any evidence that the State has
attempted to apply the statute to nudity in
performances such as plays, ballets or operas. "No
arrests have ever been made for nudity as part of a
play or ballet." App.19 (affidavit of Sgt. Timothy
Corbett).
Thus, the Indiana statute is not a general prohibition
of the type we have upheld in prior cases. As a result,
the Court's and JUSTICE SCALIA's simple references to
the State's general interest in promoting societal order
which concededly reaches a significant amount of
protected expressive activity. Instead, in applying
the O'Brien test, we are obligated to carefully examine
the reasons the State has chosen to regulate this
expressive conduct in a less than general statute. In
other words, when the State enacts a law which draws
a line between expressive conduct which is regulated
and nonexpressive conduct of the same type which is
not regulated, O'Brien places the burden on the State
to justify the distinctions it has made. Closer inquiry as
to the purpose of the statute is surely appropriate.
Legislators do not just randomly select certain conduct
for proscription; they have reasons for doing so, and
those reasons illuminate the purpose of the law that is
passed. Indeed, a law may have multiple purposes.
The purpose of
Page 501 U. S. 591
192
forbidding people from appearing nude in parks,
beaches, hot dog stands, and like public places is to
protect others from offense. But that could not
possibly be the purpose of preventing nude dancing in
theaters and barrooms, since the viewers are
exclusively consenting adults who pay money to see
these dances. The purpose of the proscription in these
contexts is to protect the viewers from what the State
believes is the harmful message that nude dancing
communicates. This is why Clark v. Community for
Creative Non-Violence, 468 U. S. 288 (1984), is of no
help to the State:
"In Clark, . . . the damage to the parks was the same
whether the sleepers were camping out for fun, were
in fact homeless, or wished by sleeping in the park to
make a symbolic statement on behalf of the
homeless."
904 F.2d at 1103 (Posner, J., concurring). That cannot
be said in this case: the perceived damage to the
public interest caused by appearing nude on the
streets or in the parks, as I have said, is not what the
State seeks to avoid in preventing nude dancing in
theaters and taverns. There the perceived harm is the
communicative aspect of the erotic dance. As the State
now tells us, and as JUSTICE SOUTER agrees, the
State's goal in applying what it describes as its
"content-neutral" statute to the nude dancing in this
case is "deterrence of prostitution, sexual assaults,
criminal activity, degradation of women, and other
activities which break down family structure." Reply
Brief for Petitioners 11. The attainment of these goals,
however, depends on preventing an expressive
activity.
The plurality nevertheless holds that the third
requirement of the O'Brien test, that the
governmental interest be unrelated to the
suppression of free expression, is satisfied, because,
in applying the statute to nude dancing, the State is
not "proscribing nudity because of the erotic message
conveyed by the dancers."  Ante at  501 U. S. 570. The
plurality suggests that this is so because the State
does not ban dancing that sends an erotic message; it
is only nude erotic dancing that is forbidden. The
perceived evil is not erotic dancing, but public 
Page 501 U. S. 592
nudity, which may be prohibited despite any incidental
impact on expressive activity. This analysis is
transparently erroneous.
In arriving at its conclusion, the Court concedes that
nude dancing conveys an erotic message, and
concedes that the message would be muted if the
193
dancers wore pasties and G-strings. Indeed, the
emotional or erotic impact of the dance is intensified
by the nudity of the performers. As Judge Posner
argued in his thoughtful concurring opinion in the
Court of Appeals, the nudity of the dancer is an
integral part of the emotions and thoughts that a nude
dancing performance evokes.  Id. at 1090-1098. The
sight of a fully clothed, or even a partially clothed,
dancer generally will have a far different impact on a
spectator than that of a nude dancer, even if the same
dance is performed. The nudity is itself an expressive
component of the dance, not merely incidental
"conduct." We have previously pointed out that
"[n]udity alone' does not place otherwise protected
material outside the mantle of the First
Amendment."  Schad v. Mt. Ephraim, 452 U. S. 61,  452
U. S. 66 (1981).
This being the case, it cannot be that the statutory
prohibition is unrelated to expressive conduct. Since
the State permits the dancers to perform if they wear
pasties and G-strings, but forbids nude dancing, it is
precisely because of the distinctive, expressive content
of the nude dancing performances at issue in this case
that the State seeks to apply the statutory prohibition.
It is only because nude dancing performances may
generate emotions and feelings of eroticism and
sensuality among the spectators that the State seeks
to regulate such expressive activity, apparently on the
assumption that creating or emphasizing such
thoughts and ideas in the minds of the spectators may
lead to increased prostitution and the degradation of
women. But generating thoughts, ideas, and emotions
is the essence of communication. The nudity element
of nude dancing performances cannot
Page 501 U. S. 593
be neatly pigeonholed as mere "conduct" independent
of any expressive component of the dance. [Footnote
4/2]
That fact dictates the level of First Amendment
protection to be accorded the performances at issue
here. In Texas v. Johnson, 491 U. S. 397,  491 U. S. 411-
412 (1989), the Court observed:
"Whether Johnson's treatment of the flag violated
Texas law thus depended on the likely communicative
impact of his expressive conduct. . . . We must
therefore subject the State's asserted interest in
preserving the special symbolic character of the flag to
'the most exacting scrutiny.'  Boos v. Barry, 485 U.S.
[312],  485 U. S. 321 [(1988)]."
Content-based restrictions "will be upheld only if
narrowly drawn to accomplish a compelling
194
governmental interest."  United States v. Grace, 461 U.
S. 171,  461 U. S. 177 (1983); Sable Communications of
California, Inc. v. FCC, 492 U. S. 115,  492 U. S.
126 (1989). Nothing could be clearer from our cases.
That the performances in the Kitty Kat Lounge may
not be high art, to say the least, and may not appeal to
the Court, is hardly an excuse for distorting and
ignoring settled doctrine. The plurality's assessment of
the artistic merits of nude dancing performances
should not be the determining factor in deciding this
case. In the words of Justice Harlan,
"it is largely because governmental officials cannot
make principled decisions
Page 501 U. S. 594
in this area that the Constitution leaves matters of
taste and style so largely to the individual."
Cohen v. California, 403 U. S. 15,  403 U. S. 25 (1971).
"[W]hile the entertainment afforded by a nude ballet
at Lincoln Center to those who can pay the price may
differ vastly in content (as viewed by judges) or in
quality (as viewed by critics), it may not differ in
substance from the dance viewed by the person
who . . . wants some 'entertainment' with his beer or
shot of rye."
Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3 (CA2
1974), aff'd in part, Doran v. Salem Inn, Inc., 422 U. S.
922 (1975).
The plurality and JUSTICE SOUTER do not go beyond
saying that the state interests asserted here are
important and substantial. But even if there were
compelling interests, the Indiana statute is not
narrowly drawn. If the State is genuinely concerned
with prostitution and associated evils, as JUSTICE
SOUTER seems to think, or the type of conduct that
was occurring in California v. LaRue, 409 U. S.
109 (1972), it can adopt restrictions that do not
interfere with the expressiveness of nonobscene nude
dancing performances. For instance, the State could
perhaps require that, while performing, nude
performers remain at all times a certain minimum
distance from spectators, that nude entertainment be
limited to certain hours, or even that establishments
providing such entertainment be dispersed
throughout the city.  Cf. Renton v. Playtime Theatres,
Inc., 475 U. S. 41 (1986). Likewise, the State clearly has
the authority to criminalize prostitution and obscene
behavior. Banning an entire category of expressive
activity, however, generally does not satisfy the
195
narrow tailoring requirement of strict First
Amendment scrutiny.  See Frisby v. Schultz, 487 U. S.
474,  487 U. S. 485 (1988). Furthermore, if nude
dancing in barrooms as compared with other
establishments, is the most worrisome problem, the
State could invoke its Twenty-first Amendment powers
and impose appropriate regulation.  New York State
Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per
curiam); California v. LaRue, supra.
Page 501 U. S. 595
As I see it, our cases require us to affirm, absent a
compelling state interest supporting the statute.
Neither the Court nor the State suggest that the
statute could withstand scrutiny under that standard.
JUSTICE SCALIA's views are similar to those of the
Court, and suffer from the same defects. The Justice
asserts that a general law barring specified conduct
does not implicate the First Amendment unless the
purpose of the law is to suppress the expressive
quality of the forbidden conduct, and that, absent
such purpose, First Amendment protections are not
triggered simply because the incidental effect of the
law is to proscribe conduct that is unquestionably
expressive.  Cf. Community for Creative Non-Violence
v. Watt, 227 U.S.App.D.C. 19, 703 F.2d 586, 622-623
(1983) (SCALIA, J., dissenting). The application of the
Justice's proposition to this case is simple to state: the
statute at issue is a general law banning nude
appearances in public places, including barrooms and
theaters. There is no showing that the purpose of this
general law was to regulate expressive conduct;
hence, the First Amendment is irrelevant, and nude
dancing in theaters and barrooms may be forbidden
irrespective of the expressiveness of the dancing.
As I have pointed out, however, the premise for the
Justice's position -- that the statute is a general law of
the type our cases contemplate -- is nonexistent in this
case. Reference to JUSTICE SCALIA's own hypothetical
makes this clear. We agree with JUSTICE SCALIA that
the Indiana statute would not permit 60,000
consenting Hoosiers to expose themselves to each
other in the Hoosierdome. No one can doubt,
however, that those same 60,000 Hoosiers would be
perfectly free to drive to their respective homes all
across Indiana and, once there, to parade around,
cavort, and revel in the nude for hours in front of
relatives and friends. It is difficult to see why the
State's interest in morality is any less in that situation,
especially if, as JUSTICE SCALIA seems to suggest,
nudity is inherently evil, but clearly the statute does 
Page 501 U. S. 596
196
not reach such activity. As we pointed out earlier, the
State's failure to enact a truly general proscription
requires closer scrutiny of the reasons for the
distinctions the State has drawn.  See supra at  501 U.
S. 590.
As explained previously, the purpose of applying the
law to the nude dancing performances in respondents'
establishments is to prevent their customers from
being exposed to the distinctive communicative
aspects of nude dancing. That being the case, JUSTICE
SCALIA's observation is fully applicable here: "Where
government prohibits conduct precisely because of its
communicative attributes, we hold the regulation
unconstitutional."  Ante at  501 U. S. 577.
The O'Brien decision does not help JUSTICE SCALIA.
Indeed, his position, like the Court's, would eviscerate
the O'Brien test.  Employment Division, Oregon Dept.
of Human Resources v. Smith, 494 U. S. 872 (1990), is
likewise not on point. The Indiana law, as applied to
nude dancing, targets the expressive activity itself; in
Indiana, nudity in a dancing performance is a crime
because of the message such dancing communicates.
In Smith, the use of drugs was not criminal because
the use was part of or occurred within the course of
an otherwise protected religious ceremony, but
because a general law made it so, and was supported
by the same interests in the religious context as in
others.
Accordingly, I would affirm the judgment of the Court
of Appeals, and dissent from this Court's judgment.
[Footnote 4/1]
JUSTICE SCALIA suggests that performance dancing is
not inherently expressive activity, see anteat  501 U. S.
577, n. 4, but the Court of Appeals has the better view:
"Dance has been defined as 'the art of moving the
body in a rhythmical way, usually to music, to express
an emotion or idea, to narrate a story, or simply to
take delight in the movement itself.' 16 The New
Encyclopedia Britannica 935 (1989). Inherently, it is the
communication of emotion or ideas. At the root of all"
"[t]he varied manifestations of dancing . . . lies the
common impulse to resort to movement to
externalise states which we cannot externalise by
rational means. This is basic dance."
"Martin, J., Introduction to the Dance (1939). Aristotle
recognized in Poetics that the purpose of dance is 'to
represent men's character as well as what they do and
suffer.' The raw communicative power of dance was
noted by the French poet Stephane Mallarme, who
197
declared that the dancer 'writing with her
body . . . suggests things which the written work
could express only in several paragraphs of dialogue
or descriptive prose.'"
904 F.2d at 1085-1086. JUSTICE SCALIA cites Dallas v.
Stanglin, 490 U. S. 19 (1989), but that decision dealt
with social dancing, not performance dancing; and the
submission in that case, which we rejected, was not
that social dancing was an expressive activity, but that
plaintiff's associational rights were violated by
restricting admission to dance halls on the basis of
age. The Justice also asserts that, even if dancing is
inherently expressive, nudity is not. The statement
may be true, but it tells us nothing about dancing in
the nude.
secondary effects that the State desires to regulate,
the State does not have even a rational basis for its
absolute prohibition on nude dancing that is
admittedly expressive. Furthermore, if the real
problem is the "concentration of crowds of men
predisposed to the" designated evils, ante at  501 U. S.
586, then the First Amendment requires that the State
address that problem in a fashion that does not
include banning an entire category of expressive
activity.  See Renton v. Playtime Theatres, Inc., 475 U.
S. 41 (1986).

[Footnote 4/2]

JUSTICE SOUTER agrees with the Court that the third

requirement of the O'Brien test is satisfied, but only
because he is not certain that there is a causal
connection between the message conveyed by nude
dancing and the evils which the State is seeking to
prevent.  See ante at  501 U. S. 585. JUSTICE SOUTER's
analysis is at least as flawed as that of the Court. If
JUSTICE SOUTER is correct that there is no causal
connection between the message conveyed by the
nude dancing at issue here and the negative

198
 438 U.S. 726

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

A radio station of respondent Pacifica Foundation

(hereinafter respondent) made an afternoon
broadcast of a satiric monologue, entitled "Filthy
Words," which listed and repeated a variety of
colloquial uses of "words you couldn't say on the
public airwaves." A father who heard the broadcast
while driving with his young son complained to the
U.S. Supreme Court Federal Communications Commission (FCC), which,
after forwarding the complaint for comment to and
receiving a response from respondent, issued a
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) declaratory order granting the complaint. While not
imposing formal sanctions, the FCC stated that the
Federal Communications Commission v. Pacifica order would be
Foundation
"associated with the station's license file, and, in the
No. 77-528 event subsequent complaints are received, the
Commission will then decide whether it should utilize
Argued April 18, 19, 1978
any of the available sanctions it has been granted by
Congress."
Decided July 3, 1978

199
In its memorandum opinion, the FCC stated that it
intended to "clarify the standards which will be utilized
in considering" the growing number of complaints
about indecent radio broadcasts, and it advanced
several reasons for treating that type of speech
differently from other forms of expression. The FCC
found a power to regulate indecent broadcasting, inter
alia, in 18 U.S.C. § 1464 (1976 ed.), which forbids the
use of "any obscene, indecent, or profane language by
means of radio communications." The FCC
characterized the language of the monologue as
"patently offensive," though not necessarily obscene,
and expressed the opinion that it should be regulated
by principles analogous to the law of nuisance, where
the "law generally speaks to channeling behavior,
rather than actually prohibiting it." The FCC found that
certain words in the monologue depicted sexual and
excretory activities in a particularly offensive manner,
noted that they were broadcast in the early afternoon,
"when children are undoubtedly in the audience," and
concluded that the language, as broadcast, was
indecent and prohibited by § 1464. A three-judge
panel of the Court of Appeals reversed, one judge
concluding that the FCC's action was invalid either on
the ground that the order constituted censorship,
which was expressly forbidden by § 326 of the
Communications Act of 1934, or on the ground that
the FCC's opinion was the functional equivalent of 
Page 438 U. S. 727
a rule, and, as such, was "overbroad." Another judge,
who felt that § 326's censorship provision did not
apply to broadcasts forbidden by § 1464, concluded
that § 1464, construed narrowly as it has to be, covers
only language that is obscene or otherwise
unprotected by the First Amendment. The third judge,
dissenting, concluded that the FCC had correctly
condemned the daytime broadcast as indecent.
Respondent contends that the broadcast was not
indecent within the meaning of the statute because of
the absence of prurient appeal.
Held: The judgment is reversed. Pp.  438 U. S. 734-
741;  438 U. S. 748-750;  438 U. S. 761-762.
181 U.S.App.D.C. 132, 556 F.2d 9, reversed.
MR. JUSTICE STEVENS delivered the opinion of the
Court with respect to Parts I-III and IV-C, finding:
1. The FCC's order was an adjudication under 5 U.S.C.
§ 554(e) (1976 ed.), the character of which was not
changed by the general statements in the
memorandum opinion; nor did the FCC's action
constitute rulemaking or the promulgation of
regulations. Hence, the Court's review must focus on
200
the FCC's determination that the monologue was
indecent as broadcast. Pp.  438 U. S. 734-735.
2. Section 326 does not limit the FCC's authority to
sanction licensees who engage in obscene, indecent,
or profane broadcasting. Though the censorship ban
precludes editing proposed broadcasts in advance, the
ban does not deny the FCC the power to review the
content of completed broadcasts. Pp.  438 U. S. 735-
738.
3. The FCC was warranted in concluding that indecent
language within the meaning of § 1464 was used in
the challenged broadcast. The words "obscene,
indecent, or profane" are in the disjunctive, implying
that each has a separate meaning. Though prurient
appeal is an element of "obscene," it is not an element
of "indecent," which merely refers to conconformance
with accepted standards of morality. Contrary to
respondent's argument, this Court, in Hamling v.
United States, 418 U. S. 87, has not foreclosed a
reading of § 1464 that authorizes a proscription of
"indecent" language that is not obscene, for the
statute involved in that case, unlike § 1464, focused
upon the prurient, and dealt primarily with printed
matter in sealed envelopes mailed from one individual
to another, whereas § 1464 deals with the content of
public broadcasts. Pp. 438 U. S. 738-741.
4. Of all forms of communication, broadcasting has
the most limited First Amendment protection. Among
the reasons for specially treating indecent
broadcasting is the uniquely pervasive presence that
medium of expression occupies in the lives of our
people. Broadcasts extend into the privacy of the
home, and it is impossible completely to avoid
Page 438 U. S. 728
those that are patently offensive. Broadcasting,
moreover, is uniquely accessible to children. Pp. 438
U. S. 747-750.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE
and MR. JUSTICE REHNQUIST, concluded in Part IV-A
and IV-B:
1. The FCC's authority to proscribe this particular
broadcast is not invalidated by the possibility that its
construction of the statute may deter certain
hypothetically protected broadcasts containing
patently offensive references to sexual and excretory
activities.  Cf. Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367. Pp.  438 U. S. 742-743.
2. The First Amendment does not prohibit all
governmental regulation that depends on the content
of speech.  Schenck v. United States, 249 U. S. 47,  249
201
U. S. 52. The content of respondent's broadcast, which
was "vulgar," "offensive," and "shocking," is not
entitled to absolute constitutional protection in all
contexts; it is therefore necessary to evaluate the
FCC's action in light of the content of that broadcast.
Pp.  438 U. S. 744-748.
MR. JUSTICE POWELL, joined by MR. JUSTICE
BLACKMUN, concluded that the FCC's holding does
not violate the First Amendment, though, being of the
view that Members of this Court are not free generally
to decide on the basis of its content which speech
protected by the First Amendment is most valuable
and therefore deserving of First Amendment
protection, and which is less "valuable" and hence less
deserving of protection, he is unable to join Part IV-B
(or IV-A) of the opinion. Pp.  438 U. S. 761-762.
STEVENS, J., announced the Court's judgment and
delivered an opinion of the Court with respect to Parts
I-III and IV-C, in which BURGER, C.J., and REHNQUIST, J.,
joined, and in all but Parts IV-A and IV-B of which
BLACKMUN and POWELL, JJ., joined, and an opinion as
to Parts IV-A and IV-B, in which BURGER, C.J., and
REHNQUIST, J., joined. POWELL, J., filed an opinion
concurring in part and concurring in the judgment, in
which BLACKMUN, J., joined, post, p.  438 U. S. 755.
BRENNAN, J., filed a dissenting opinion, in which
MARSHALL, J., joined, post, p.  438 U. S. 762. STEWART,
J., filed a dissenting opinion, in which BRENNAN,
WHITE, and MARSHALL, JJ., joined, post, p.  438 U. S.
777. 
Page 438 U. S. 729
MR. JUSTICE STEVENS delivered the opinion of the
Court (Parts I, II, III, and IV-C) and an opinion in which
THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST
joined (Parts IV-A and IV-B).
This case requires that we decide whether the Federal
Communications Commission has any power to
regulate a radio broadcast that is indecent but not
obscene.
A satiric humorist named George Carlin recorded a 12-
minute monologue entitled "Filthy Words" before a
live audience in a California theater. He began by
referring to his thoughts about "the words you
couldn't say on the public, ah, airwaves, um, the ones
you definitely wouldn't say, ever." He proceeded to list
those words and repeat them over and over again in a
variety of colloquialisms. The transcript of the
recording, which is appended to this opinion, indicates
frequent laughter from the audience.
202
At about 2 o'clock in the afternoon on Tuesday,
October 30, 1973, a New York radio station, owned by
respondent Pacifica
Page 438 U. S. 730
Foundation, broadcast the "Filthy Words" monologue.
A few weeks later a man, who stated that he had
heard the broadcast while driving with his young son,
wrote a letter complaining to the Commission. He
stated that, although he could perhaps understand
the "record's being sold for private use, I certainly
cannot understand the broadcast of same over the air
that, supposedly, you control."
The complaint was forwarded to the station for
comment. I n its response, Pacifica explained that the
monologue had been played during a program about
contemporary society's attitude toward language, and
that, immediately before its broadcast, listeners had
been advised that it included "sensitive language
which might be regarded as offensive to some."
Pacifica characterized George Carlin as "a significant
social satirist" who,
"like Twain and Sahl before him, examines the
language of ordinary people. . . . Carlin is not
mouthing obscenities, he is merely using words to
satirize as harmless and essentially silly our attitudes
towards those words."
Pacifica stated that it was not aware of any other
complaints about the broadcast.
On February 21, 1975, the Commission issued a
declaratory order granting the complaint and holding
that Pacifica "could have been the subject of
administrative sanctions." 56 F.C.C.2d 94, 99. The
Commission did not impose formal sanctions, but it
did state that the order would be
"associated with the station's license file, and, in the
event that subsequent complaints are received, the
Commission will then decide whether it should utilize
any of the available sanctions it has been granted by
Congress. [Footnote 1] "
Page 438 U. S. 731
In its memorandum opinion, the Commission stated
that it intended to "clarify the standards which will be
utilized in considering" the growing number of
complaints about indecent speech on the
airwaves.  Id. at 94. Advancing several reasons for
treating broadcast speech differently from other
forms of expression, [Footnote 2] the Commission
found a power to regulate indecent broadcasting in
203
two statutes: 18 U.S.C. § 1464 (1976 ed.), which forbids
the use of "any obscene, indecent, or profane
language by means of radio communications,"
[Footnote 3] and 47 U.S.C. § 303(g), which requires the
Commission to "encourage the larger and more
effective use of radio in the public interest." [Footnote
4]
The Commission characterized the language used in
the Carlin monologue as "patently offensive," though
not necessarily obscene, and expressed the opinion
that it should be regulated by principles analogous to
those found in the law of nuisance, where the
"law generally speaks to channeling behavior more
than actually prohibiting it. . . . [T]he concept  indecent words as part of a live newscast would not be
Page 438 U. S. 732
of 'indecent' is intimately connected with the exposure
of children to language that describes, in terms
patently offensive as measured by contemporary
community standards for the broadcast medium,
sexual or excretory activities and organs, at times of
the day when there is a reasonable risk that children
may be in the audience."
56 F.C.C.2d at 98. [Footnote 5]
Applying these considerations to the language used in
the monologue as broadcast by respondent, the
Commission concluded that certain words depicted
sexual and excretory activities in a patently offensive
manner, noted that they "were broadcast at a time
when children were undoubtedly in the audience
(i.e., in the early afternoon)," and that the prerecorded
language, with these offensive words "repeated over
and over," was "deliberately broadcast."  Id. at 99. In
summary, the Commission stated: "We therefore hold
that the language as broadcast was indecent and
prohibited by 18 U.S.C. [§] 1464. [Footnote 6]"  Ibid.
After the order issued, the Commission was asked to
clarify its opinion by ruling that the broadcast of
prohibited. The Commission issued another opinion in
which it pointed out that
Page 438 U. S. 733
it
"never intended to place an absolute prohibition on
the broadcast of this type of language, but rather
sought to channel it to times of day when children
most likely would not be exposed to it."
204
59 F.C.C.2d 892 (1976). The Commission noted that its
"declaratory order was issued in a specific factual
context," and declined to comment on various
hypothetical situations presented by the petition.
[Footnote 7]  Id. at 893. It relied on its
"long-standing policy of refusing to issue interpretive
rulings or advisory opinions when the critical facts are
not explicitly stated or there is a possibility that
subsequent events will alter them."
Ibid.
The United States Court of Appeals for the District of
Columbia Circuit reversed, with each of the three
judges on the panel writing separately. 181
U.S.App.D.C. 132, 556 F.2d 9. Judge Tamm concluded
that the order represented censorship and was
expressly prohibited by § 326 of the Communications
Act. [Footnote 8] Alternatively, Judge Tamm read the
Commission opinion as the functional equivalent of a
rule, and concluded that it was "overbroad." 181
U.S.App.D.C. at 141, 556 F.2d at 18. Chief Judge
Bazelon's concurrence rested on the Constitution. He
was persuaded that § 326's prohibition against
censorship is inapplicable to broadcasts forbidden by
§ 1464. However, he concluded that § 1464 
Page 438 U. S. 734
must be narrowly construed to cover only language
that is obscene or otherwise unprotected by the First
Amendment. 181 U.S.App.D.C. at 140-153, 556 F.2d at
24-30. Judge Leventhal, in dissent, stated that the only
issue was whether the Commission could regulate the
language "as broadcast."  Id. at 154, 556 F.2d at 31.
Emphasizing the interest in protecting children not
only from exposure to indecent language, but also
from exposure to the idea that such language has
official approval, id. at 160, and n. 18, 556 F.2d at 37,
and n. 18, he concluded that the Commission had
correctly condemned the daytime broadcast as
indecent.
Having granted the Commission's petition for
certiorari, 434 U.S. 1008, we must decide: (1) whether
the scope of judicial review encompasses more than
the Commission's determination that the monologue
was indecent "as broadcast"; (2) whether the
Commission's order was a form of censorship
forbidden by § 326; (3) whether the broadcast was
indecent within the meaning of § 1464; and (4)
whether the order violates the First Amendment of the
United States Constitution.
205
I 126. Accordingly, the focus of our review must be on
The general statements in the Commission's
memorandum opinion do not change the character of
its order. Its action was an adjudication under 5 U.S.C.
§ 554(e) (1976 ed.); it did not purport to engage in
formal rulemaking or in the promulgation of any
regulations. The order "was issued in a specific factual
context"; questions concerning possible action in
other contexts were expressly reserved for the future.
The specific holding was carefully confined to the
monologue "as broadcast."
"This Court . . . reviews judgments, not statements in
opinions."  Black v. Cutter Laboratories, 351 U. S.
292,  351 U. S. 297. That admonition has special force
when the statements raise constitutional questions,
for it is our settled practice to avoid the unnecessary
decision of such issues.  Rescue Army v. Municipal
Court, 331 U. S. 549,  331 U. S. 568 569. However
appropriate  by any radio station, and no regulation or condition
Page 438 U. S. 735
it may be for an administrative agency to write broadly
in an adjudicatory proceeding, federal courts have
never been empowered to issue advisory
opinions.  See Herb v. Pitcairn, 324 U. S. 117,  324 U. S.
the Commission's determination that the Carlin
monologue was indecent as broadcast.
II
The relevant statutory questions are whether the
Commission's action is forbidden "censorship" within
the meaning of 47 U.S.C. § 326 and whether speech
that concededly is not obscene may be restricted as
"indecent" under the authority of 18 U.S.C. § 1464
(1976 ed.). The questions are not unrelated, for the
two statutory provisions have a common origin.
Nevertheless, we analyze them separately.
Section 29 of the Radio Act of 1927 provided:
"Nothing in this Act shall be understood or construed
to give the licensing authority the power of censorship
over the radio communications or signals transmitted
shall be promulgated or fixed by the licensing
authority which shall interfere with the right of free
speech by means of radio communications. No person
within the jurisdiction of the United States shall utter
any obscene, indecent, or profane language by means
of radio communication."
206
44 Stat. 1172.
The prohibition against censorship unequivocally
denies the Commission any power to edit proposed
broadcasts in advance and to excise material
considered inappropriate for the airwaves. The
prohibition, however, has never been construed to
deny the Commission the power to review the content
of completed broadcasts in the performance of its
regulatory duties. [Footnote 9]  out that the Commission is not prevented from
Page 438 U. S. 736
During the period between the original enactment of
the provision in 1927 and its reenactment in the
Communications Act of 1934, the courts and the
Federal Radio Commission held that the section
deprived the Commission of the power to subject
"broadcasting matter to scrutiny prior to its release,"
but they concluded that the Commission's "undoubted
right" to take note of past program content when
considering a licensee's renewal application "is not
censorship." [Footnote 10]  Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d
Page 438 U. S. 737
Not only did the Federal Radio Commission so
construe the statute prior to 1934; its successor, the
Federal Communications Commission, has
consistently interpreted the provision in the same way
ever since.  See Note, Regulation of Program Content
by the FCC, 77 Harv.L.Rev. 701 (1964). And, until this
case, the Court of Appeals for the District of Columbia
Circuit has consistently agreed with this construction.
[Footnote 11] Thus, for example, in his opinion in Anti-
Defamation League of B'nai B'rith v. FCC, 131
U.S.App.D.C. 146, 403 F.2d 169 (1968), cert.
denied, 394 U.S. 930, Judge Wright forcefully pointed
canceling the license of a broadcaster who persists in
a course of improper programming. He explained:
"This would not be prohibited 'censorship' . . . any
more than would the Commission's considering on a
license renewal application whether a broadcaster
allowed 'coarse, vulgar, suggestive, double-meaning'
programming; programs containing such material are
grounds for denial of a license renewal."
131 U.S.App.D.C. at 150-151, n. 3, 403 F.2d at 173-174,
n. 3.  See also Office of Communication of United
994 (1966).
Entirely apart from the fact that the subsequent
review of program content is not the sort of
censorship at which the statute was directed, its
history makes it perfectly clear that it was not
207
intended to limit the Commission's power to regulate
the broadcast of obscene, indecent, or profane
language. A single section of the 1927 Act is the source
of both
Page 438 U. S. 738
the anti-censorship provision and the Commission's
authority to impose sanctions for the broadcast of
indecent or obscene language. Quite plainly, Congress
intended to give meaning to both provisions. Respect
for that intent requires that the censorship language
be read as inapplicable to the prohibition on
broadcasting obscene, indecent, or profane language.
There is nothing in the legislative history to contradict
this conclusion. The provision was discussed only in
generalities when it was first enacted. [Footnote 12] In
1934, the anti-censorship provision and the
prohibition against indecent broadcasts were
reenacted in the same section, just as in the 1927 Act.
In 1948, when the Criminal Code was revised to
include provisions that had previously been located in
other Titles of the United States Code, the prohibition
against obscene, indecent, and profane broadcasts
was removed from the Communications Act and
reenacted as § 1464 of Title 18. 62 Stat. 769 and 866.
That rearrangement of the Code cannot reasonably be
interpreted as having been intended to change the
meaning of the anti-censorship provision. H.R.Rep. No.
304, 80th Cong., 1st Sess., A106 (1947).  Cf. Tidewater
Oil Co. v. United States, 409 U. S. 151,  409 U. S. 162.
We conclude, therefore, that § 326 does not limit the
Commission's authority to impose sanctions on
licensees who engage in obscene, indecent, or profane
broadcasting.
III
The only other statutory question presented by this
case is whether the afternoon broadcast of the "Filthy
Words"
Page 438 U. S. 739
monologue was indecent within the meaning of §
1464. [Footnote 13] Even that question is narrowly
confined by the arguments of the parties.
The Commission identified several words that referred
to excretory or sexual activities or organs, stated that
the repetitive, deliberate use of those words in an
afternoon broadcast when children are in the
audience was patently offensive, and held that the
broadcast was indecent. Pacifica takes issue with the
Commission's definition of indecency, but does not
dispute the Commission's preliminary determination
208
that each of the components of its definition was
present. Specifically, Pacifica does not quarrel with the
conclusion that this afternoon broadcast was patently
offensive. Pacifica's claim that the broadcast was not
indecent within the meaning of the statute rests
entirely on the absence of prurient appeal.
The plain language of the statute does not support
Pacifica's argument. The words "obscene, indecent, or
profane" are
Page 438 U. S. 740
written in the disjunctive, implying that each has a
separate meaning. Prurient appeal is an element of
the obscene, but the normal definition of "indecent"
merely refers to nonconformance with accepted
standards of morality. [Footnote 14]
Pacifica argues, however, that this Court has
construed the term "indecent" in related statutes to
mean "obscene," as that term was defined in Miller v.
California, 413 U. S. 15. Pacifica relies most heavily on
the construction this Court gave to 18 U.S.C. § 1461
in Hamling v. United States,418 U. S. 87.  See also
United States v. 12 200-ft. Reels of Film, 413 U. S.
123,  413 U. S. 130 n. 7 (18 U.S.C. § 1462)
(dicta).  Hamling rejected a vagueness attack on §
1461, which forbids the mailing of "obscene, lewd,
lascivious, indecent, filthy or vile" material. In holding
that the statute's coverage is limited to obscenity, the
Court followed the lead of Mr. Justice Harlan in Manual
Enterprises, Inc. v. Day, 370 U. S. 478. In that case, Mr.
Justice Harlan recognized that § 1461 contained a
variety of words with many shades of meaning.
[Footnote 15] Nonetheless, he thought that the phrase
"obscene, lewd, lascivious, indecent, filthy or vile,"
taken as a whole, was clearly limited to the obscene, a
reading well grounded in prior judicial constructions:
"[T]he statute, since its inception, has always been
taken as aimed at obnoxiously debasing portrayals of
sex." 370 U.S. at  370 U. S. 483. In Hamling, the Court
agreed with Mr. Justice Harlan that § 1461 was meant
only to regulate obscenity in the mails; by reading into
it the limits set by Miller v. California, supra, the Court
adopted a construction which assured the statute's
constitutionality. 
Page 438 U. S. 741
The reasons supporting Hamling's construction of §
1461 do not apply to § 1464. Although the history of
the former revealed primary concern with the
prurient, the Commission has long interpreted § 1464
as encompassing more than the obscene. [Footnote
16] The former statute deals primarily with printed
matter enclosed in sealed envelopes mailed from one
209
individual to another; the latter deals with the content
of public broadcasts. It is unrealistic to assume that
Congress intended to impose precisely the same
limitations on the dissemination of patently offensive
matter by such different means. [Footnote 17]
Because neither our prior decisions nor the language
or history of § 1464 supports the conclusion that
prurient appeal is an essential component of indecent
language, we reject Pacifica's construction of the
statute. When that construction is put to one side,
there is no basis for disagreeing with the
Commission's conclusion that indecent language was
used in this broadcast.  cannot be adequately judged in the abstract.
Page 438 U. S. 742
IV
Pacifica makes two constitutional attacks on the
Commission's order. First, it argues that the
Commission's construction of the statutory language
broadly encompasses so much constitutionally
protected speech that reversal is required even if
Pacifica's broadcast of the "Filthy Words" monologue
is not itself protected by the First Amendment.
Second, Pacifica argues that, inasmuch as the
recording is not obscene, the Constitution forbids any
abridgment of the right to broadcast it on the radio.
A
The first argument fails because our review is limited
to the question whether the Commission has the
authority to proscribe this particular broadcast. As the
Commission itself emphasized, its order was "issued in
a specific factual context." 59 F.C.C.2d at 893. That
approach is appropriate for courts as well as the
Commission when regulation of indecency is at stake,
for indecency is largely a function of context -- it
The approach is also consistent with Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367. In that case, the
Court rejected an argument that the Commission's
regulations defining the fairness doctrine were so
vague that they would inevitably abridge the
broadcasters' freedom of speech. The Court of
Appeals had invalidated the regulations because their
vagueness might lead to self-censorship of
controversial program 
Page 438 U. S. 743
content.  Radio Television News Directors Assn. v.
United States, 400 F.2d 1002, 1016 (CA7 1968). This
210
Court reversed. After noting that the Commission had
indicated, as it has in this case, that it would not
impose sanctions without warning in cases in which
the applicability of the law was unclear, the Court
stated:
"We need not approve every aspect of the fairness
doctrine to decide these cases, and we will not now
pass upon the constitutionality of these regulations by
envisioning the most extreme applications
conceivable, United States v. Sullivan, 332 U. S.
689,  332 U. S. 694 (1948), but will deal with those
problems if and when they arise."
395 U.S. at  395 U. S. 396.
It is true that the Commission's order may lead some
broadcasters to censor themselves. At most, however,
the Commission's definition of indecency will deter
only the broadcasting of patently offensive references
to excretory and sexual organs and activities.
[Footnote 18] While some of these references may be
protected, they surely lie at the periphery of First
Amendment concern.  Cf. Bates v. State Bar of
Arizona, 433 U. S. 350,  433 U. S. 380-381.  Young v.
American Mini Theatres, Inc., 427 U. S. 50,  427 U. S.
61. The danger dismissed so summarily in Red Lion, in
contrast, was that broadcasters would respond to the
vagueness of the regulations by refusing to present
programs dealing with important social and political
controversies. Invalidating any rule on the basis of its
hypothetical application to situations not before the
Court is "strong medicine," to be applied "sparingly
and only as a last resort."  Broadrick v. Oklahoma, 413
U. S. 601,  413 U. S. 613. We decline to administer that
medicine to preserve the vigor of patently offensive
sexual and excretory speech. 
Page 438 U. S. 744
B
When the issue is narrowed to the facts of this case,
the question is whether the First Amendment denies
government any power to restrict the public broadcast
of indecent language in any circumstances. [Footnote
19] For if the government has any such power, this
was an appropriate occasion for its exercise.
The words of the Carlin monologue are
unquestionably "speech" within the meaning of the
First Amendment. It is equally clear that the
Commission's objections to the broadcast were based
in part on its content. The order must therefore fall if,
as Pacifica argues, the First Amendment prohibits all
governmental regulation that depends on the content
of speech. Our past cases demonstrate, however, that
211
no such absolute rule is mandated by the
Constitution.
The classic exposition of the proposition that both the
content and the context of speech are critical
elements of First Amendment analysis is Mr. Justice
Holmes' statement for the Court in Schenck v. United
States, 249 U. S. 47,  249 U. S. 52:
"We admit that, in many places and in ordinary times,
the defendants, in saying all that was said in the
circular, would have been within their constitutional
rights. But the character of every act depends upon
the circumstances in which it is done. . . . The most
stringent protection of free speech would not protect
a man in falsely shouting fire in a theatre and causing
a panic. It does not even protect a man from an
injunction against uttering words
Page 438 U. S. 745
that may have all the effect of force. . . . The question
in every case is whether the words used are used in
such circumstances and are of such a nature as to
create a clear and present danger that they will bring
about the substantive evils that Congress has a right
to prevent."
Other distinctions based on content have been
approved in the years since Schenck. The government
may forbid speech calculated to provoke a fight.  See
Chaplinsky v. New Hampshire,315 U. S. 568. It may pay
heed to the "common sense differences' between
commercial speech and other varieties."  Bates v. State
Bar of Arizona, supra at  433 U. S. 381. It may treat
libels against private citizens more severely than libels
against public officials.  See Gertz v. Robert Welch,
Inc., 418 U. S. 323. Obscenity may be wholly
prohibited.  Miller v. California, 413 U. S. 15. And, only
two Terms ago, we refused to hold that a "statutory
classification is unconstitutional because it is based on
the content of communication protected by the First
Amendment."  Young v. American Mini Theatres, Inc.,
supra, at 427 U. S. 52.
The question in this case is whether a broadcast of
patently offensive words dealing with sex and
excretion may be regulated because of its content.
[Footnote 20] Obscene materials have been denied
the protection of the First Amendment because their
content is so offensive to contemporary moral
standards.  Roth v. United States, 354 U. S. 476. But
the fact that society may find speech offensive is not a
sufficient reason for suppressing it. Indeed, if it is the
speaker's opinion that gives offense, that
consequence is a reason for according it constitutional
212
protection. For it is a central tenet of the First
Amendment that the government must remain
neutral in the marketplace of  protected.  See, e.g., Hess v. Indiana, 414 U. S. 105.
Page 438 U. S. 746
ideas. [Footnote 21] If there were any reason to
believe that the Commission's characterization of the
Carlin monologue as offensive could be traced to its
political content -- or even to the fact that it satirized
contemporary attitudes about four-letter words
[Footnote 22] -- First Amendment protection might be
required. But that is simply not this case. These words
offend for the same reasons that obscenity offends.
[Footnote 23] Their place in the hierarchy of First
Amendment values was aptly sketched by Mr. Justice
Murphy when he said:
"[S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest
in order and morality."
Chaplinski v. New Hampshire, 315 U.S. at  315 U. S.
572.
Although these words ordinarily lack literary, political,
or scientific value, they are not entirely outside the
protection of the First Amendment. Some uses of even
the most offensive words are unquestionably
Indeed, we may assume, arguendo, that this
monologue would be protected in other contexts.
Nonetheless, 
Page 438 U. S. 747
the constitutional protection accorded to a
communication containing such patently offensive
sexual and excretory language need not be the same
in every context. [Footnote 24] It is a characteristic of
speech such as this that both its capacity to offend
and its "social value," to use Mr. Justice Murphy's term,
vary with the circumstances. Words that are
commonplace in one setting are shocking in another.
To paraphrase Mr. Justice Harlan, one occasion's lyric
is another's vulgarity.  Cf. Cohen v. California, 403 U. S.
15,  403 U. S. 25. [Footnote 25]
In this case, it is undisputed that the content of
Pacifica's broadcast was "vulgar," "offensive," and
"shocking." Because content of that character is not
entitled to absolute constitutional protection under all
circumstances, we must consider its
Page 438 U. S. 748
213
context in order to determine whether the
Commission's action was constitutionally permissible.
C individual's right to be left alone plainly outweighs the
We have long recognized that each medium of
expression presents special First Amendment
problems.  Joseph Burstyn, Inc. v. Wilson, 343 U. S.
495,  343 U. S. 502-503. And of all forms of
communication, it is broadcasting that has received
the most limited First Amendment protection. Thus,
although other speakers cannot be licensed except
under laws that carefully define and narrow official
discretion, a broadcaster may be deprived of his
license and his forum if the Commission decides that
such an action would serve "the public interest,
convenience, and necessity." [Footnote 26] Similarly,
although the First Amendment protects newspaper
publishers from being required to print the replies of
those whom they criticize, Miami Herald Publishing Co.
v. Tornillo, 418 U. S. 241, it affords no such protection
to broadcasters; on the contrary, they must give free
time to the victims of their criticism.  Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367.
The reasons for these distinctions are complex, but
two have relevance to the present case. First, the
broadcast media have established a uniquely
pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented over
the airwaves confronts the citizen not only in public,
but also in the privacy of the home, where the
First Amendment rights of an intruder.  Rowan v. Post
Office Dept.,397 U. S. 72. Because the broadcast
audience is constantly tuning in and out, prior
warnings cannot completely protect the listener or
viewer from unexpected program content. To say that
one may avoid further offense by turning off the radio
when he 
Page 438 U. S. 749
hears indecent language is like saying that the remedy
for an assault is to run away after the first blow. One
may hang up on an indecent phone call, but that
option does not give the caller a constitutional
immunity or avoid a harm that has already taken
place. [Footnote 27]
Second, broadcasting is uniquely accessible to
children, even those too young to read. Although
Cohen's written message might have been
incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's vocabulary in
an instant. Other forms of offensive expression may
be withheld from the young without restricting the
expression at its source. Bookstores and motion
214
picture theaters, for example, may be prohibited from the audience, [Footnote 29] and differences between
making indecent material available to children. We radio, television, and perhaps closed-circuit
held in Ginsberg v. New York, 390 U. S. 629, that the transmissions, may also be relevant. As Mr. Justice
government's interest in the "wellbeing of its youth" Sutherland wrote, a "nuisance may be merely a right
and in supporting "parents' claim to authority in their thing in the wrong place, -- like a pig in the parlor
own household" justified the regulation of otherwise instead of the barnyard."  Euclid v. Ambler Realty
protected expression.  Co., 272 U. S. 365,  272 U. S. 383. We simply hold that,
when the Commission finds that a pig has entered the
Page 438 U. S. 750 parlor, the exercise 

Id. at  390 U. S. 640 and  390 U. S. 639. [Footnote 28] Page 438 U. S. 751

The ease with which children may obtain access to
broadcast material, coupled with the concerns of its regulatory power does not depend on proof that
recognized in Ginsberg, amply justify special the pig is obscene.
treatment of indecent broadcasting.
The judgment of the Court of Appeals is reversed.
It is appropriate, in conclusion, to emphasize the
narrowness of our holding. This case does not involve It is so ordered.
a two-way radio conversation between a cab driver
and a dispatcher, or a telecast of an Elizabethan |438 U.S. 726app|
comedy. We have not decided that an occasional
APPENDIX TO OPINION OF THE COURT
expletive in either setting would justify any sanction
or, indeed, that this broadcast would justify a criminal
The following is a verbatim transcript of "Filthy Words"
prosecution. The Commission's decision rested
prepared by the Federal Communications
entirely on a nuisance rationale under which context is
Commission.
all-important. The concept requires consideration of a
host of variables. The time of day was emphasized by Aruba-du, ruba-tu, ruba-tu. I was thinking about the
the Commission. The content of the program in which curse words and the swear words, the cuss words and
the language is used will also affect the composition of

215
the words that you can't say, that you're not supposed
to say all the time, [']cause words or people into words
want to hear your words. Some guys like to record
your words and sell them back to you if they can,
(laughter) listen in on the telephone, write down what
words you say. A guy who used to be in Washington
knew that his phone was tapped, used to answer, Fuck
Hoover, yes, go ahead. (laughter) Okay, I was thinking
one night about the words you couldn't say on the
public, ah, airwaves, um, the ones you definitely
wouldn't say, ever, [']cause I heard a lady say bitch one
night on television, and it was cool like she was talking
about, you know, ah, well, the bitch is the first one to
notice that in the litter Johnie right. (murmur) Right.
And, uh, bastard you can say, and hell and damn, so I
have to figure out which ones you couldn't and ever
and it came down to seven but the list is open to
amendment, and in fact, has been changed, uh, by
now, ha, a lot of people pointed things out to me, and I
noticed some myself. The original seven words were
shit, piss, fuck, cunt, cocksucker, motherfucker, and
tits. Those are the ones that will curve your spine,
grow hair on your hands and (laughter) maybe, even
bring us, God help us, peace without honor (laughter)
um, and a bourbon. (laughter) And now the first thing
that we noticed was that word fuck was really
repeated in there because the word motherfucker is a
compound word and it's another form of the word
fuck. (laughter) You want to be a purist it 
Page 438 U. S. 752
doesn't really, it can't be on the list of basic words.
Also, cocksucker is a compound word and neither half
of that is really dirty. The word -- the half sucker that's
merely suggestive (laughter) and the word cock is a
half-way dirty word, 50% dirty -- dirty half the time,
depending on what you mean by it. (laughter) Uh,
remember when you first heard it, like in 6th grade,
you used to giggle. And the cock crowed three times,
heh (laughter) the cock -- three times. It's in the Bible,
cock in the Bible. (laughter) And the first time you
heard about a cock-fight, remember -- What? Huh?
naw. It ain't that, are you stupid? man. (laughter,
clapping) It's chickens, you know, (laughter) Then you
have the four letter words from the old Anglo-Saxon
fame. Uh, shit and fuck. The word shit, uh, is an
interesting kind of word in that the middle class has
never really accepted it and approved it. They use it
like, crazy but it's not really okay. It's still a rude, dirty,
old kind of gushy word. (laughter) They don't like that,
but they say it, like, they say it like, a lady now in a
middle-class home, you'll hear most of the time she
says it as an expletive, you know, it's out of her mouth
before she knows. She says, Oh shit oh shit, (laughter)
216
oh shit. If she drops something, Oh, the shit hurt the
broccoli. Shit. Thank you. (footsteps fading away)
(papers ruffling)
Read it! (from audience)
Shit! (laughter) I won the Grammy, man, for the
comedy album. Isn't that groovy? (clapping, whistling)
(murmur) That's true. Thank you. Thank you man.
Yeah. (murmur) (continuous clapping) Thank you man.
Thank you. Thank you very much, man. Thank, no,
(end of continuous clapping) for that and for the
Grammy, man, [']cause (laughter) that's based on
people liking it man, yeh, that's ah, that's okay man.
(laughter) Let's let that go, man. I got my Grammy. I
can let my hair hang down now, shit. (laughter) Ha! So!
Now the word shit is okay for the man. At work you
can say it like crazy. Mostly figuratively, Get that shit
out of here,
Page 438 U. S. 753
will ya? I don't want to see that shit anymore. I can't
colt that shit, buddy. I've had that shit up to here. I
think you're full of shit myself (laughter) He don't know
shit from Shinola. (laughter) you know that? (laughter)
Always wondered how the Shinola people felt about
that (laughter) Hi, I'm the new man from Shinola.
(laughter) Hi, how are ya? Nice to see ya. (laughter)
How are ya? (laughter) Boy, I don't know whether to
shit or wind my watch. (laughter) Guess, I'll shit on my
watch. (laughter) Oh, the shit is going to hit de fan.
(laughter) Built like a brick shit-house. (laughter) Up,
he's up shit's creek. (laughter) He's had it. (laughter)
He hit me, I'm sorry. (laughter) Hot shit, holy shit,
tough shit, eat shit, (laughter) shit-eating grin. Uh,
whoever thought of that was ill. (murmur laughter) He
had a shit-eating grin! He had a what? (laughter) Shit
on a stick. (laughter) Shit in a handbag. I always like
that. He ain't worth shit in a handbag. (laughter) Shitty.
He acted real shitty. (laughter) You know what I mean?
(laughter) I got the money back, but a real shitty
attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit.
Whew! Glad I wasn't there. (murmur, laughter) All the
animals -- Bull shit, horse shit, cow shit, rat shit, bat
shit. (laughter) First time I heard bat shit, I really came
apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat
shit. (laughter) Vera reminded me of that last night, ah
(murmur). Snake shit, slicker than owl shit. (laughter)
Get your shit together. Shit or get off the pot.
(laughter) I got a shit-1oad full of them. (laughter) I got
a shit-pot full, all right. Shit-head, shit-heel, shit in your
heart, shit for brains, (laughter) shit-face, heh
(laughter) I always try to think how that could have
originated; the first guy that said that. Somebody got
drunk and fell in some shit, you know. (laughter) Hey,
I'm shit-face. (laughter) Shitface, today. (laughter)
217
Anyway, enough of that shit. (laughter) The big one,
the word fuck that's the one that hangs them up the
most. [']Cause in a lot of cases that's the very act that  (laughter) Right? (laughter) You finally can't make out.
Page 438 U. S. 754
hangs them up the most. So, it's natural that the word
would, uh, have the same effect. It's a great word,
fuck, nice word, easy word, cute word, kind of. Easy
word to say. One syllable, short u. (laughter) Fuck.
(Murmur) You know, it's easy. Starts with a nice soft
sound -- fuh -- ends with a kh. Right? (laughter) A little
something for everyone. Fuck (laughter) Good word.
Kind of a proud word, too. Who are you? I am FUCK.
(laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in
again next week to FUCK OF THE MOUNTAIN.
(laughter) It's an interesting word too, [']cause it's got a
double kind of a life -- personality -- dual, you know,
whatever the right phrase is. It leads a double life, the
word fuck. First of all, it means, sometimes, most of
the time, fuck. What does it mean? It means to make
love. Right? We're going to make love, yeh, we're going
to fuck, yeh, we're going to fuck, yeh, we're going to
make love. (laughter) we're really going to fuck, yeh,
we're going to make love. Right? And it also means the
beginning of life, it's the act that begins life, so there's
the word hanging around with words like love, and life,
and yet, on the other hand, it's also a word that we
really use to hurt each other with, man. It's a heavy.
It's one that you have toward the end of the argument.
Oh, fuck you man. I said, fuck you. (laughter, murmur)
Stupid fuck. (laughter) Fuck you and everybody that
looks like you, (laughter) man. It would be nice to
change the movies that we already have and
substitute the word fuck for the word kill, wherever we
could, and some of those movie cliches would change
a little bit. Madfuckers still on the loose. Stop me
before I fuck again. Fuck the ump, fuck the ump, fuck
the ump, fuck the ump, fuck the ump. Easy on the
clutch Bill, you'll fuck that engine again. (laughter) The
other shit one was, I don't give a shit. Like it's worth
something, you know? (laughter) I don't give a shit.
Hey, well, I don't take no shit, (laughter) you know
what I mean? You know why I don't take no shit?
(laughter)
Page 438 U. S. 755
[']Cause I don't give a shit. (laughter) If I give a shit, I
would have to pack shit. (laughter) But I don't pack no
shit cause I don't give a shit. (laughter) You wouldn't
shit me, would you? (laughter) That's a joke when
you're a kid with a worm looking out the bird's ass.
You wouldn't shit me, would you? (laughter) It's an
eight-year-old joke but a good one. (laughter) The
218
additions to the list. I found three more words that 56 F.C.C.2d at 99. The Commission noted:
had to be put on the list of words you could never say
on television, and they were fart, turd and twat, those "Congress has specifically empowered the FCC to (1)
three. (laughter) Fart, we talked about, it's harmless. revoke a station's license (2) issue a cease and desist
It's like tits, it's a cutie word, no problem. Turd, you order, or (3) impose a monetary forfeiture for a
can't say, but who wants to, you know? (laughter) The violation of Section 1464, 47 U.S.C. [§§] 312(a), 312(b),
subject never comes up on the panel, so I'm not 503(b)(1) (E). The FCC can also (4) deny license renewal
worried about that one. Now the word twat is an or (5) grant a short term renewal, 47 U.S.C. [§§] 307,
interesting word. Twat! Yeh, right in the twat. 308."
(laughter) Twat is an interesting word because it's the
only one I know of, the only slang word applying to Id. at 96 n. 3.
the, a part of the sexual anatomy that doesn't have
[Footnote 2]
another meaning to it. Like, ah, snatch, box and pussy
all have other meanings, man. Even in a Walt Disney
"Broadcasting requires special treatment because of
movie, you can say, We're going to snatch that pussy
four important considerations: (1) children have
and put him in a box and bring him on the airplane.
access to radios and in many cases are unsupervised
(murmur, laughter) Everybody loves it. The twat stands
by parents; (2) radio receivers are in the home, a place
alone, man, as it should. And two-way words. Ah, ass is
where people's privacy interest is entitled to extra
okay providing you're riding into town on a religious
deference, see Rowan v. Post Office Dept., 397 U. S.
feast day. (laughter) You can't say, up your ass.
728 (1970); (3) unconsenting adults may tune in a
(laughter) You can say, stuff it! (murmur) There are
station without any warning that offensive language is
certain things you can say -- its weird, but you can just
being or will be broadcast; and (4) there is a scarcity of
come so close. Before I cut, I, uh, want to, ah, thank
spectrum space, the use of which the government
you for listening to my words, man, fellow, uh space
must therefore license in the public interest. Of special
travelers. Thank you man for tonight and thank you
concern to the Commission, as well as parents, is the
also. (clapping whistling)
first point regarding the use of radio by children."
[Footnote 1]
Id. at 97.

219
[Footnote 3]
Title 18 U.S.C. § 1464 (1976 ed.) provides:
"Whoever utters any obscene, indecent, or profane
language by means of radio communication shall be
fined not more than $10,000 or imprisoned not more
than two years, or both."
[Footnote 4]
Section 303(g) of the Communications Act of 1934, 48
Stat. 1082, as amended, as set forth in 47 U.S.C. §
303(g), in relevant part, provides:
"Except as otherwise provided in this chapter, the
Commission from time to time, as public convenience,
interest, or necessity requires, shall -- "
"* * * *" 
"(g) . . . generally encourage the larger and more
effective use of radio in the public interest."
[Footnote 5]
Thus, the Commission suggested, if an offensive
broadcast had literary, artistic, political, or scientific
value, and were preceded by warnings, it might not be
indecent in the late evening, but would be so during
the day, when children are in the audience. 56 F.C.C.2d
at 98.
[Footnote 6]
Chairman Wiley concurred in the result without joining
the opinion. Commissioners Reid and Quello filed
separate statements expressing the opinion that the
language was inappropriate for broadcast at any
time.  Id. at 102-103. Commissioner Robinson, joined
by Commissioner Hooks, filed a concurring statement
expressing the opinion:
"[W]e can regulate offensive speech to the extent it
constitutes a public nuisance. . . . The governing idea is
that 'indecency' is not an inherent attribute of words
themselves; it is, rather, a matter of context and
conduct. . . . If I were called on to do so, I would find
that Carlin's monologue, if it were broadcast at an
appropriate hour and accompanied by suitable
warning, was distinguished by sufficient literary value
to avoid being 'indecent' within the meaning of the
statute."
Id. at 107-108, and n. 9.
[Footnote 7]
220
The Commission did, however, comment:
"'[I]n some cases, public events likely to produce
offensive speech are covered live, and there is no
opportunity for journalistic editing.' Under these
circumstances, we believe that it would be inequitable
for us to hold a licensee responsible for indecent
language. . . . We trust that, under such circumstances,
a licensee will exercise judgment, responsibility, and
sensitivity to the community's needs, interests and
tastes."
59 F.C.C.2d at 893 n. 1.
[Footnote 8]
"Nothing in this Act shall be understood or construed
to give the Commission the power of censorship over
the radio communications or signals transmitted by
any radio station, and no regulation or condition shall
be promulgated or fixed by the Commission which
shall interfere with the right of free speech by means
of radio communication."
48 Stat. 1091, 47 U.S.C. § 326.
[Footnote 9]
Zechariah Chafee, defending the Commission's
authority to take into account program service in
granting licenses, interpreted the restriction on
"censorship" narrowly:
"This means, I feel sure, the sort of censorship which
went on in the seventeenth century in England -- the
deletion of specific items and dictation as to what
should go into particular programs."
2 Z. Chafee, Government and Mass Communications
641 (1947).
[Footnote 10]
In KFKB Broadcasting Assn. v. Federal Radio
Comm'n, 60 App.D.C. 79, 47 F.2d 670 (1931), a doctor
who controlled a radio station as well as a
pharmaceutical association made frequent broadcasts
in which he answered the medical questions of
listeners. He often prescribed mixtures prepared by
his pharmaceutical association. The Commission
determined that renewal of the station's license would
not be in the public interest, convenience, or necessity
because many of the broadcasts served the doctor's
private interests. In response to the claim that this was
censorship in violation of § 29 of the 1927 Act, the
Court held:
221
"This contention is without merit. There has been no
attempt on the part of the commission to subject any
part of appellant's broadcasting matter to scrutiny
prior to its release. In considering the question
whether the public interest, convenience, or necessity
will be served by a renewal of appellant's license, the
commission has merely exercised its undoubted right
to take note of appellant's past conduct, which is not
censorship."
60 App.D.C. at 81, 47 F.2d at 672. In Trinity Methodist
Church, South v. Federal Radio Comm'n, 61 App.D.C.
311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, the
station was controlled by a minister whose broadcasts
contained frequent references to "pimps" and
"prostitutes" as well as bitter attacks on the Roman
Catholic Church. The Commission refused to renew
the license, citing the nature of the broadcasts. The
Court of Appeals affirmed, concluding that First
Amendment concerns did not prevent the
Commission from regulating broadcasts that
"offend the religious susceptibilities of thousands . . .
or offend youth and innocence by the free use of
words suggestive of sexual immorality."
61 App.D.C. at 314, 62 F.2d at 853. The court
recognized that the licensee had a right to broadcast
this material free of prior restraint, but
"this does not mean that the government, through
agencies established by Congress, may not refuse a
renewal of license to one who has abused it."
Id. at 312, 62 F.2d at 851.
[Footnote 11]
See, e.g., Bay State Beacon, Inc. v. FCC, 84 U.S.App.D.C.
216, 171 F.2d 826 (1948); Idaho Microwave, Inc. v.
FCC, 122 U.S.App.D.C. 253, 352 F.2d 729
(1965); National Assn. of Theatre Owners v. FCC, 136
U.S.App.D.C. 352, 420 F.2d 194 (1969), cert.
denied, 397 U.S. 922.
[Footnote 12]
See, e.g., 67 Cong.Rec. 12615 (1926) (remarks of Sen.
Dill); id. at 5480 (remarks of Rep. White); 68 Cong.Rec.
2567 (1927) (remarks of Rep. Scott); Hearings on S. 1
and S. 1754 before the Senate Committee on
Interstate Commerce, 69th Cong., 1st Sess., 121
(1926); Hearings on H.R. 5589 before the House
Committee on the Merchant Marine and Fisheries,
69th Cong., 1st Sess., 26 and 40 (1926).  See
also Hearings on H.R. 8825 before the House
Committee on the Merchant Marine and Fisheries,
70th Cong., 1st Sess., passim (1928).
222
[Footnote 13]
In addition to § 1464, the Commission also relied on its
power to regulate in the public interest under 47
U.S.C. § 303(g). We do not need to consider whether §
303 may have independent significance in a case such
as this. The statutes authorizing civil penalties
incorporate § 1464, a criminal statute.  See 47 U.S.C. §§
312(a)(6), 312(b)(2), and 503(b)(1)(E) (1970 ed. and
Supp. V). But the validity of the civil sanctions is not
linked to the validity of the criminal penalty. The
legislative history of the provisions establishes their
independence. As enacted in 1927 and 1934, the
prohibition on indecent speech was separate from the
provisions imposing civil and criminal penalties for
violating the prohibition. Radio Act of 1927, §§ 14, 29,
and 33, 44 Stat. 1168 and 1173; Communications Act
of 1934, §§ 312, 326, and 501, 48 Stat. 1086, 1091, and
1100, 47 U.S.C. §§ 312, 326, and 501 (1970 ed. and
Supp. V). The 1927 and 1934 Acts indicated in the
strongest possible language that any invalid provision
was separable from the rest of the Act. Radio Act of
1927, § 38, 44 Stat. 1174; Communications Act of 1934,
§ 608, 48 Stat. 1105, 47 U.S.C. § 608. Although the 1948
codification of the criminal laws and the addition of
new civil penalties changes the statutory structure, no
substantive change was apparently intended.  Cf.
Tidewater Oil Co. v. United States, 409 U. S. 151,  409
U. S. 162. Accordingly, we need not consider any
question relating to the possible application of § 1464
as a criminal statute.
[Footnote 14]
Webster defines the term as
"a: altogether unbecoming: contrary to what the
nature of things or what circumstances would dictate
as right or expected or appropriate: hardly suitable:
UNSEEMLY . . . b: not conforming to generally
accepted standards of morality: . . . ."
Webster's Third New International Dictionary (1966).
[Footnote 15]
Indeed, at one point, he used "indecency" as a
shorthand term for "patent offensiveness," 370 U.S.
at  370 U. S. 482, a usage strikingly similar to the
Commission's definition in this case. 56 F.C.C.2d at 98.
[Footnote 16]
"'[W]hile a nudist magazine may be within the
protection of the First Amendment . . . , the televising
of nudes might well raise a serious question of
programming contrary to 18 U.S.C. § 1464. . . .
223
Similarly, regardless of whether the '4-letter words'
and sexual description, set forth in 'Lady Chatterly's
Lover,' (when considered in the context of the whole
book) make the book obscene for mailability
purposes, the utterance of such words or the
depiction of such sexual activity on radio or TV would
raise similar public interest and section 1464
questions.'"
Enbanc Programming Inquiry, 44 F.C.C. 2303, 2307
(1960).  See also In re WUHY-FM, 24 F.C.C.2d 408, 412
(1970); In re Sonderlin Broadcasting Corp., 27 R.R.2d
285, on reconsideration, 41 F.C.C.2d 777 (1973), aff'd
on other grounds sub nom. Illinois Citizens Committee
for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515
F.2d 397 (1974); In re Mile High Stations, Inc., 28 F.C.C.
795 (1960); In re Palmetto Broadcasting Co., 33 F.C.C.
250 (1962), reconsideration denied, 34 F.C.C. 101
(1963), aff'd on other grounds sub nom. Robinson v.
FCC, 118 U.S.App.D.C. 144, 334 F.2d 534 (1964), cert.
denied,379 U.S. 843.
[Footnote 17]
This conclusion is reinforced by noting the different
constitutional limits on Congress' power to regulate
the two different subjects. Use of the postal power to
regulate material that is not fraudulent or obscene
raises "grave constitutional questions."  Hannegan v.
Esquire, Inc., 327 U. S. 146,  327 U. S. 156. But it is well
settled that the First Amendment has a special
meaning in the broadcasting context.  See, e.g., FCC v.
National Citizens Committee for Broadcasting, 436 U.
S. 775; Red Lion Broadcasting Co. v. FCC, 395 U. S.
367; Columbia Broadcasting System, Inc. v. Democratic
National Committee, 412 U. S. 94. For this reason, the
presumption that Congress never intends to exceed
constitutional limits, which
supported Hamling's narrow reading of § 1461, does
not support a comparable reading of § 1464.
[Footnote 18]
A requirement that indecent language be avoided will
have its primary effect on the form, rather than the
content, of serious communication. There are few, if
any, thoughts that cannot be expressed by the use of
less offensive language.
[Footnote 19]
Pacifica's position would, of course, deprive the
Commission of any power to regulate erotic telecasts
unless they were obscene under Miller v.
California, 413 U. S. 15. Anything that could be sold at
a newsstand for private examination could be publicly
displayed on television.
224
We are assured by Pacifica that the free play of market
forces will discourage indecent programming. "Smut
may," as Judge Leventhal put it, "drive itself from the
market and confound Gresham," 181 U.S.App.D.C. at
158, 556 F.2d at 35; the prosperity of those who traffic
in pornographic literature and films would appear to
justify skepticism.
[Footnote 20]
Although neither MR. JUSTICE POWELL nor MR.
JUSTICE BRENNAN directly confronts this question,
both have answered it affirmatively, the latter
explicitly, post at  438 U. S. 768 n. 3, and the former
implicitly by concurring in a judgment that could not
otherwise stand.
[Footnote 21]
See, e.g., Madison School District v. Wisconsin
Employment Relations Comm'n, 429 U. S. 167,  429 U.
S. 175-176; First National Bank of Boston v.
Bellotti, 435 U. S. 765.
[Footnote 22]
The monologue does present a point of view; it
attempts to show that the words it uses are
"harmless," and that our attitudes toward them are
"essentially silly."  See supra at  438 U. S. 730. The
Commission objects not to this point of view, but to
the way in which it is expressed. The belief that these
words are harmless does not necessarily confer a First
Amendment privilege to use them while proselytizing,
just as the conviction that obscenity is harmless does
not license one to communicate that conviction by the
indiscriminate distribution of an obscene leaflet.
[Footnote 23]
The Commission stated:
"Obnoxious, gutter language describing these matters
has the effect of debasing and brutalizing human
beings by reducing them to their mere bodily
functions. . . ."
56 F.C.C.2d at 98. Our society has a tradition of
performing certain bodily functions in private, and of
severely limiting the public exposure or discussion of
such matters. Verbal or physical acts exposing those
intimacies are offensive irrespective of any message
that may accompany the exposure.
[Footnote 24]
With respect to other types of speech, the Court has
tailored its protection to both the abuses and the uses
225
to which it might be put.  See, e.g., New York Times Co.
v. Sullivan, 376 U. S. 254(special scienter rules in libel
suits brought by public officials); Bates v. State Bar of
Arizona, 433 U. S. 350 (government may strictly
regulate truthfulness in commercial speech).  See also
Young v. American Mini Theatres, Inc., 427 U. S.
50,  427 U. S. 82 n. 6 (POWELL, J., concurring).
[Footnote 25]
The importance of context is illustrated by
the Cohen case. That case arose when Paul Cohen
entered a Los Angeles courthouse wearing a jacket
emblazoned with the words "Fuck the Draft." After
entering the courtroom, he took the jacket off and
folded it. 403 U.S. at  403 U. S. 19 n. 3. So far as the
evidence showed, no one in the courthouse was
offended by his jacket. Nonetheless, when he left the
courtroom, Cohen was arrested, convicted of
disturbing the peace, and sentenced to 30 days in
prison.
In holding that criminal sanctions could not be
imposed on Cohen for his political statement in a
public place, the Court rejected the argument that his
speech would offend unwilling viewers; it noted that
"there was no evidence that persons powerless to
avoid [his] conduct did in fact object to it."  Id. at  403
U. S. 22. In contrast, in this case, the Commission was
responding to a listener's strenuous complaint, and
Pacifica does not question its determination that this
afternoon broadcast was likely to offend listeners. It
should be noted that the Commission imposed a far
more moderate penalty on Pacifica than the state
court imposed on Cohen. Even the strongest civil
penalty at the Commission's command does not
include criminal prosecution. See  n 1, supra.
[Footnote 26]
47 U.S.C. §§ 309(a), 312(a)(2); FCC v. WOKO, Inc., 329 U.
S. 223,  329 U. S. 229.  Cf. Shuttlesworth v.
Birmingham, 394 U. S. 147; Staub v. Baxley, 355 U. S.
313.
[Footnote 27]
Outside the home, the balance between the offensive
speaker and the unwilling audience may sometimes
tip in favor of the speaker, requiring the offended
listener to turn away.  See Erznoznik v.
Jacksonville, 422 U. S. 205. As we noted in Cohen v.
California:
"While this Court has recognized that government may
properly act in many situations to prohibit intrusion
into the privacy of the home of unwelcome views and
ideas which cannot be totally banned from the public
226
dialogue . . . , we have at the same time consistently
stressed that "we are often captives' outside the
sanctuary of the home, and subject to objectionable
speech."" 
403 U.S. at  403 U. S. 21. The problem of harassing
phone calls is hardly hypothetical. Congress has
recently found it necessary to prohibit debt collectors
from "plac[ing] telephone calls without meaningful
disclosure of the caller's identity"; from "engaging any
person in telephone conversation repeatedly or
continuously with intent to annoy, abuse, or harass
any person at the called number"; and from "us[ing]
obscene or profane language or language the natural
consequence of which is to abuse the hearer or
reader." Consumer Credit Protection Act
Amendments, 91 Stat. 877, 15 U.S.C. § 1692d (1976
ed., Supp. II).
[Footnote 28]
The Commission's action does not by any means
reduce adults to hearing only what is fit for
children.  Cf. Butler v. Michigan, 352 U. S. 380,  352 U.
S. 383. Adults who feel the need may purchase tapes
and records or go to theaters and nightclubs to hear
these words. In fact, the Commission has not
unequivocally closed even broadcasting to speech of
this sort; whether broadcast audiences in the late
evening contain so few children that playing this
monologue would be permissible is an issue neither
the Commission nor this Court has decided.
[Footnote 29]
Even a prime time recitation of Geoffrey Chaucer's
Miller's Tale would not be likely to command the
attention of many children who are both old enough
to understand and young enough to be adversely
affected by passages such as: "And prively he caughte
hire by the queynte." The Canterbury Tales, Chaucer's
Complete Works (Cambridge ed.1933), p. 58, l. 3276.
MR. JUSTICE POWELL, with whom MR. JUSTICE
BLACKMUN joins, concurring in part and concurring in
the judgment.
I join Parts I, II, III, and IV-C of MR. JUSTICE STEVENS'
opinion. The Court today reviews only the
Commission's holding that Carlin's monologue was
indecent "as broadcast"
Page 438 U. S. 756
at two o'clock in the afternoon, and not the broad
sweep of the Commission's opinion.  Ante at 438 U. S.
734-735. In addition to being consistent with our
settled practice of not deciding constitutional issues
227
unnecessarily, see ante at  438 U. S. 734; Ashwander v.
TVA, 297 U. S. 288,  297 U. S. 345-348 (1936) (Brandeis,
J., concurring), this narrow focus also is conducive to
the orderly development of this relatively new and
difficult area of law, in the first instance by the
Commission, and then by the reviewing
courts.  See 181 U.S.App.D.C. 132, 158-160, 556 F.2d 9,
35-37 (1977) (Leventhal, J., dissenting).
I also agree with much that is said in  438 U. S.  be prohibited from purchasing a recording or
JUSTICE STEVENS' opinion, and with its conclusion that
the Commission's holding in this case does not violate
the First Amendment. Because I do not subscribe to all
that is said in Part IV, however, I state my views
separately.
I
It is conceded that the monologue at issue here is not
obscene in the constitutional sense.  See56 F.C.C.2d
94, 98 (1975); Brief for Petitioner 18. Nor, in this
context, does its language constitute "fighting words"
within the meaning of Chaplinsky v. New
Hampshire, 315 U. S. 568 (1942). Some of the words
used have been held protected by the First
Amendment in other cases and contexts.  E.g., Lewis v.
New Orleans, 415 U. S. 130 (1974); Hess v. Indiana, 414
U. S. 105 (1973); Papish v. University of Missouri
Curators, 410 U. S. 667 (1973); Cohen v. California, 403
U. S. 15(1971); see also Eaton v. Tulsa, 415 U. S.
697 (1974). I do not think Carlin, consistently with the
First Amendment, could be punished for delivering the
same monologue to a live audience composed of
adults who, knowing what to expect, chose to attend
his performance.  See Brown v. Oklahoma, 408 U. S.
914 (1972) (POWELL, J., concurring in result). And I
would assume that an adult could not constitutionally
transcript of the monologue 
Page 438 U. S. 757
and playing or reading it in the privacy of his own
home.  Cf. Stanley v. Georgia, 394 U. S. 557(1969).
But it also is true that the language employed is, to
most people, vulgar and offensive. It was chosen
specifically for this quality, and it was repeated over
and over as a sort of verbal shock treatment. The
Commission did not err in characterizing the narrow
category of language used here as "patently offensive"
to most people regardless of age.
The issue, however, is whether the Commission may
impose civil sanctions on a licensee radio station for
broadcasting the monologue at two o'clock in the
afternoon. The Commission's primary concern was to
228
prevent the broadcast from reaching the ears of
unsupervised children who were likely to be in the
audience at that hour. In essence, the Commission
sought to "channel" the monologue to hours when the
fewest unsupervised children would be exposed to
it.  See 56 F.C.C.2d at 98. In my view, this consideration
provides strong support for the Commission's holding.
[Footnote 2/1]
The Court has recognized society's right to "adopt
more stringent controls on communicative materials
available to youths than on those available to
adults."  Erznoznik v. Jacksonville, 422 U. S. 205,  422 U.
S. 212 (1975); see also, e.g., Miller v. California, 413 U.
S. 15,  413 U. S. 36 n. 17 (1973); Ginsberg v. New
York, 390 U. S. 629,  390 U. S. 636-641 (1968); Jacobellis
v. Ohio, 378 U. S. 184,  378 U. S. 195 (1964) (opinion of
BRENNAN, J.). This recognition stems in large part
from the fact that "a child . . . is not possessed of that
full capacity for individual choice which is the
presupposition of First Amendment
guarantees."  Ginsberg v. New York, supra at  390 U. S.
649-650 (STEWART, J., concurring in result). Thus,
children may not be able to protect themselves from
speech which, although shocking to most adults,
generally may be avoided by the unwilling 
Page 438 U. S. 758
through the exercise of choice. At the same time, such
speech may have a deeper and more lasting negative
effect on a child than on an adult. For these reasons,
society may prevent the general dissemination of such
speech to children, leaving to parents the decision as
to what speech of this kind their children shall hear
and repeat:
"[C]onstitutional interpretation has consistently
recognized that the parents' claim to authority in their
own household to direct the rearing of their children is
basic in the structure of our society."
"It is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose
primary function and freedom include preparation for
obligations the state can neither supply nor hinder."
"Prince v. Massachusetts, [321 U.S. 158,  321 U. S.
166 (1944)]. The legislature could properly conclude
that parents and others, teachers for example, who
have this primary responsibility for children's
wellbeing are entitled to the support of laws designed
to aid discharge of that responsibility."
Id. at  390 U. S. 639. The Commission properly held
that the speech from which society may attempt to
shield its children is not limited to that which appeals
to the youthful prurient interest. The language
229
involved in this case is as potentially degrading and
harmful to children as representations of many erotic
acts.
In most instances, the dissemination of this kind of
speech to children may be limited without also limiting
willing adults' access to it. Sellers of printed and
recorded matter and exhibitors of motion pictures
and live performances may be required to shut their
doors to children, but such a requirement has no
effect on adults' access.  See id. at  390 U. S. 634-635.
The difficulty is that such a physical separation of the
audience cannot be accomplished in the broadcast
media. During most of the broadcast hours, both
adults and unsupervised children are likely to be in the
broadcast audience, and the broadcaster cannot reach
willing adults without also reaching  21; Rowan v. Post Office Dept., 397 U. S. 728 (1970).
Page 438 U. S. 759
children. This, as the Court emphasizes, is one of the
distinctions between the broadcast and other media
to which we often have adverted as justifying a
different treatment of the broadcast media for First
Amendment purposes.  See Bates v. State Bar of
Arizona, 433 U. S. 350, 433 U. S. 384 (1977); Columbia
Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94,  412 U. S. 101 (1973); Red
Lion Broadcasting Co. v. FCC, 395 U. S. 367,  395 U. S.
386-387 (1969); Capital Broadcasting Co. v.
Mitchell, 333 F.Supp. 582 (DC 1971), aff'd sub nom.
Capital Broadcasting Co. v. Acting Attorney
General, 405 U.S. 1000 (1972); see generally Joseph
Burstyn, Inc. v. Wilson, 343 U. S. 495,  343 U. S. 502-
503 (1952). In my view, the Commission was entitled to
give substantial weight to this difference in reaching
its decision in this case.
A second difference, not without relevance, is that
broadcasting -- unlike most other forms of
communication -- comes directly into the home, the
one place where people ordinarily have the right not
to be assaulted by uninvited and offensive sights and
sounds.  Erznoznik v. Jacksonville, supra at  422 U. S.
209; Cohen v. California, 403 U.S. at  403 U. S.
Although the First Amendment may require unwilling
adults to absorb the first blow of offensive but
protected speech when they are in public before they
turn away, see, e.g., Erznoznik, supra at  422 U. S. 210-
211, but cf. Rosenfeld v. New Jersey, 408 U. S. 901,
903-909 (1972) (POWELL, J., dissenting), a different
order of values obtains in the home.
"That we are often 'captives' outside the sanctuary of
the home and subject to objectionable speech and
230
other sound does not mean we must be captives
everywhere."
Rowan v. Post Office Dept., supra at  397 U. S. 738. The
Commission also was entitled to give this factor
appropriate weight in the circumstances of the instant
case. This is not to say, however, that the Commission
has an unrestricted license to decide what speech,
protected in other media, may be banned from the
airwaves in order to protect  transcript reprinted as an appendix to the Court's
Page 438 U. S. 760
unwilling adults from momentary exposure to it in
their homes. [Footnote 2/2] Making the sensitive
judgments required in these cases is not easy. But this
responsibility has been reposed initially in the
Commission, and its judgment is entitled to respect.
It is argued that, despite society's right to protect its
children from this kind of speech, and despite
everyone's interest in not being assaulted by offensive
speech in the home, the Commission's holding in this
case is impermissible because it prevents willing
adults from listening to Carlin's monologue over the
radio in the early afternoon hours. It is said that this
ruling will have the effect of "reduc[ing] the adult
population . . . to [hearing] only what is fit for
children."  Butler v. Michigan, 352 U. S. 380,  352 U. S.
383 (1957). This argument is not without force. The
Commission certainly should consider it as it develops
standards in this area. But it is not sufficiently strong
to leave the Commission powerless to act in
circumstances such as those in this case.
The Commission's holding does not prevent willing
adults from purchasing Carlin's record, from attending
his performances, or, indeed, from reading the
opinion. On its face, it does not prevent respondent
Pacifica Foundation from broadcasting the monologue
during late evening hours, when fewer children are
likely to be in the audience, nor from broadcasting
discussions of the contemporary use of language at
any time during the day. The Commission's holding,
and certainly the Court's holding today, does not
speak to cases involving the isolated 
Page 438 U. S. 761
use of a potentially offensive word in the course of a
radio broadcast, as distinguished from the verbal
shock treatment administered by respondent here. In
short, I agree that, on the facts of this case, the
Commission's order did not violate respondent's First
Amendment rights.
231
II
As the foregoing demonstrates, my views are generally
in accord with what is said in Part IV-C of MR. JUSTICE
STEVENS' opinion.  See ante at  438 U. S. 748-750. I
therefore join that portion of his opinion. I do not join
Part IV-B, however, because I do not subscribe to the
theory that the Justices of this Court are free generally
to decide on the basis of its content which speech
protected by the First Amendment is most "valuable,"
and hence deserving of the most protection, and
which is less "valuable" and hence deserving of less
protection.  Compare ante at 438 U. S. 744-748; Young
v. American Mini Theatres, Inc., 427 U. S. 50,  427 U. S.
63-73 (1976) (opinion of STEVENS, J.), with id. at  427 U.
S. 73 n. 1 (POWELL, J., concurring). [Footnote 2/3] In
my view, the result in this case does not turn on
whether Carlin's monologue, viewed as a whole, or the
words that constitute it, have more or less "value"
than a candidate's campaign speech. This is a
judgment for each person to make, not one for the
judges to impose upon him. [Footnote 2/4]  programs with warnings. But such warnings do not
Page 438 U. S. 762
The result turns instead on the unique characteristics
of the broadcast media, combined with society's right
to protect its children from speech generally agreed to
be inappropriate for their years, and with the interest
of unwilling adults in not being assaulted by such
offensive speech in their homes. Moreover, I doubt
whether today's decision will prevent any adult who
wishes to receive Carlin's message in Carlin's own
words from doing so, and from making for himself a
value judgment as to the merit of the message and
words.  Cf. id. at  427 U. S. 77-79 (POWELL, J.,
concurring). These are the grounds upon which I join
the judgment of the Court as to Part IV.
[Footnote 2/1]
See generally Judge Leventhal's thoughtful opinion in
the Court of Appeals. 181 U.S.App.D.C. 132, 155-158,
556 F.2d 9, 32-35 (1977) (dissenting opinion).
[Footnote 2/2]
It is true that the radio listener quickly may tune out
speech that is offensive to him. In addition,
broadcasters may preface potentially offensive
help the unsuspecting listener who tunes in at the
middle of a program. In this respect, too, broadcasting
appears to differ from books and records, which may
carry warnings on their face, and from motion pictures
and live performances, which may carry warnings on
their marquees.
232
[Footnote 2/3]
The Court has, however, created a limited exception to
this rule in order to bring commercial speech within
the protection of the First Amendment.  See Ohralik v.
Ohio State Bar Assn., 436 U. S. 447,  436 U. S. 455-456
(1978).
[Footnote 2/4]
For much the same reason, I also do not join Part IV-A.
I had not thought that the application vel non of
overbreadth analysis should depend on the Court's
judgment as to the value of the protected speech that
might be deterred.  Cf. ante at  438 U. S. 743. Except in
the context of commercial speech, see Bates v. State
Bar of Arizona, 433 U. S. 350,  433 U. S. 380-381 (1977),
it has not in the past.  See, e.g., Lewis v. New
Orleans, 415 U. S. 130 (1974); Gooding v. Wilson, 405
U. S. 518 (1972).
As MR. JUSTICE STEVENS points out,
however, ante at  438 U. S. 734, the Commission's
order was limited to the facts of this case; "it did not
purport to engage in formal rulemaking or in the
promulgation of any regulations." In addition, since
the Commission may be expected to proceed
cautiously, as it has in the past, cf. Brief for Petitioner
42-43, and n. 31, I do not foresee an undue "chilling"
effect on broadcasters' exercise of their rights. I agree,
therefore, that respondent's overbreadth challenge is
meritless.
ME. JUSTICE BRENNAN, with whom MR. JUSTICE
MARSHALL joins, dissenting.
I agree with MR. JUSTICE STEWART that,
under Hamling v. United States, 418 U. S. 87 (1974),
and United States v. 12 200-ft. Reels of Film, 413 U. S.
123 (1973), the word "indecent" in 18 U.S.C. § 1464
(1976 ed.) must be construed to prohibit only obscene
speech. I would, therefore, normally refrain from
expressing my views on any constitutional issues
implicated in this case. However, I find the Court's
misapplication of fundamental First Amendment
principles so patent, and its attempt to impose its
notions of propriety on the whole of the American
people so misguided, that I am unable to remain
silent.
I
For the second time in two years, see Young v.
American Mini Theatres, Inc., 427 U. S. 50 (1976), the
Court refuses to embrace the notion, completely
antithetical to basic First Amendment values, that the
degree of protection the First 
233
Page 438 U. S. 763
Amendment affords protected speech varies with the
social value ascribed to that speech by five Members
of this Court.  See opinion of MR. JUSTICE
POWELL, ante at  438 U. S. 761-762. Moreover as do all
parties, all Members of the Court agree that the Carlin
monologue aired by Station WBAI does not fall within
one of the categories of speech, such as "fighting
words," Chaplinsky v. New Hampshire, 315 U. S.
568 (1942), or obscenity, Roth v. United States, 354 U.
S. 476 (1957), that is totally without First Amendment
protection. This conclusion, of course, is compelled by
our cases expressly holding that communications
containing some of the words found condemnable
here are fully protected by the First Amendment in
other contexts.  See Eaton v. Tulsa, 415 U. S.
697 (1974); Papish v. University of Missouri
Curators, 410 U. S. 667 (1973); Brown v.
Oklahoma, 408 U. S. 914 (1972); Lewis v. New
Orleans, 408 U. S. 913 (1972); Rosenfeld v. New
Jersey, 408 U. S. 901 (1972); Cohen v. California, 403 U.
S. 15 (1971). Yet despite t.he Court's refusal to create a
sliding scale of First Amendment protection calibrated
to this Court's perception of the worth of a
communication's content, and despite our unanimous
agreement that the Carlin monologue is protected
speech, a majority of the Court [Footnote 3/1]
nevertheless finds that, on the facts of this case, the
FCC is not constitutionally barred from imposing
sanctions on Pacifica for its airing of the Carlin
monologue. This majority apparently believes that the
FCC's disapproval of Pacifica's afternoon broadcast of
Carlin's "Dirty Words" recording is a permissible time,
place, and manner regulation.  Kovacs v. Cooper, 336
U. S. 77(1949). Both the opinion of my Brother
STEVENS and the opinion of my Brother POWELL rely
principally on two factors in reaching this conclusion:
(1) the capacity of a radio broadcast to intrude into the
unwilling listener's home, 
Page 438 U. S. 764
and (2) the presence of children in the listening
audience. Dispassionate analysis, removed from
individual notions as to what is proper and what is not,
starkly reveals that these justifications, whether
individually or together, simply do not support even
the professedly moderate degree of governmental
homogenization of radio communications -- if, indeed,
such homogenization can ever be moderate given the
preeminent status of the right of free speech in our
constitutional scheme that the Court today permits.
A
234
Without question, the privacy interests of an individual
in his home are substantial, and deserving of
significant protection. In finding these interests
sufficient to justify the content regulation of protected
speech, however, the Court commits two errors. First,
it misconceives the nature of the privacy interests
involved where an individual voluntarily chooses to
admit radio communications into his home. Second, it
ignores the constitutionally protected interests of both
those who wish to transmit and those who desire to
receive broadcasts that many -- including the FCC and
this Court -- might find offensive.
"The ability of government, consonant with the
Constitution, to shut off discourse solely to protect
others from hearing it is . . . dependent upon a
showing that substantial privacy interests are being
invaded in an essentially intolerable manner. Any
broader view of this authority would effectively
empower a majority to silence dissidents simply as a
matter of personal predilections."
Cohen v. California, supra, at  403 U. S. 21. I am in
wholehearted agreement with my Brethren that an
individual's right "to be let alone" when engaged in
private activity within the confines of his own home is
encompassed within the "substantial privacy interests"
to which Mr. Justice Harlan referred in Cohen, and is
entitled to the greatest solicitude.  Stanley v.
Georgia, 394 U. S. 557(1969). However, I believe that
an individual's actions in switching on 
Page 438 U. S. 765
and listening to communications transmitted over the
public airways and directed to the public at large do
not implicate fundamental privacy interests, even
when engaged in within the home. Instead, because
the radio is undeniably a public medium, these actions
are more properly viewed as a decision to take part, if
only as a listener, in an ongoing public
discourse.  See Note, Filthy Words, the FCC, and the
First Amendment: Regulating Broadcast Obscenity, 61
Va.L.Rev. 579, 618 (1975). Although an individual's
decision to allow public radio communications into his
home undoubtedly does not abrogate all of his privacy
interests, the residual privacy interests he retains vis-
a-vis the communication he voluntarily admits into his
home are surely no greater than those of the people
present in the corridor of the Los Angeles courthouse
in Cohen who bore witness to the words "Fuck the
Draft" emblazoned across Cohen's jacket. Their
privacy interests were held insufficient to justify
punishing Cohen for his offensive communication.
Even if an individual who voluntarily opens his home
to radio communications retains privacy interests of
235
sufficient moment to justify a ban on protected speech
if those interests are "invaded in an essentially
intolerable manner," Cohen v. California, supra at  403
U. S. 21, the very fact that those interests are
threatened only by a radio broadcast precludes any
intolerable invasion of privacy; for unlike other
intrusive modes of communication, such as sound
trucks, "[t]he radio can be turned off," Lehman v.
Shaker Heights, 418 U. S. 298,  418 U. S. 302 (1974) --
and with a minimum of effort. As Chief Judge Bazelon
aptly observed below,
"having elected to receive public air waves, the
scanner who stumbles onto an offensive program is in
the same position as the unsuspecting passers-by
in Cohen and Erznoznik [v. Jacksonville, 422 U. S.
205 (1975)]; he can avert his attention by changing
channels or turning off the set."
181 U.S.App.D.C. 132, 149, 556 F.2d 9, 26 (1977).
Whatever the minimal discomfort suffered by a
Page 438 U. S. 766
listener who inadvertently tunes into a program he
finds offensive during the brief interval before he can
simply extend his arm and switch stations or flick the
"off" button, it is surely worth the candle to preserve
the broadcaster's right to send, and the right of those
interested to receive, a message entitled to full First
Amendment protection. To reach a contrary balance,
as does the Court, is clearly to follow MR. JUSTICE
STEVENS' reliance on animal metaphors, anteat  438
U. S. 750-751, "to burn the house to roast the
pig."  Butler v. Michigan, 352 U. S. 380,  352 U. S.
383 (1957).
The Court's balance, of necessity, fails to accord
proper weight to the interests of listeners who wish to
hear broadcasts the FCC deems offensive. It permits
majoritarian tastes completely to preclude a protected
message from entering the homes of a receptive,
unoffended minority. No decision of this Court
supports such a result. Where the individuals
constituting the offended majority may freely choose
to reject the material being offered, we have never
found their privacy interests of such moment to
warrant the suppression of speech on privacy
grounds.  Cf. Lehman v. Shaker Heights, supra.  Rowan
v. Post Office Dept., 397 U. S. 728 (1970), relied on by
the FCC and by the opinions of my Brothers POWELL
and STEVENS, confirms, rather than belies, this
conclusion. In Rowan, the Court upheld a statute, 39
U.S.C. § 4009 (1964 ed., Supp. IV), permitting
householders to require that mail advertisers stop
sending them lewd or offensive materials and remove
their names from mailing lists. Unlike the situation
236
here, householders who wished to receive the
sender's communications were not prevented from
doing so. Equally important, the determination of
offensiveness vel non under the statute involved
in Rowan was completely within the hands of the
individual householder; no governmental evaluation
of the worth of the mail's content stood between the
mailer and the householder. In contrast, the visage of
the censor is all too discernible here.  Massachusetts, 383 U. S. 413 (1966), and that "[w]e
Page 438 U. S. 767
B supra at  422 U. S. 213 n. 10. Nevertheless, we have
Most parents will undoubtedly find understandable, as
well as commendable, the Court's sympathy with the
FCC's desire to prevent offensive broadcasts from
reaching the ears of unsupervised children.
Unfortunately, the facial appeal of this justification for
radio censorship masks its constitutional insufficiency.
Although the government unquestionably has a
special interest in the wellbeing of children, and
consequently "can adopt more stringent controls on
communicative materials available to youths than on
those available to adults," Erznoznik v.
Jacksonville, 422 U. S. 205,  422 U. S. 212 (1975); see
Paris Adult Theatre I v. Slaton, 413 U. S. 49,  413 U. S.
106-107 (1973) (BRENNAN, J., dissenting), the Court
has accounted for this societal interest by adopting a
"variable obscenity" standard that permits the
prurient appeal of material available to children to be
assessed in terms of the sexual interests of
minors.  Ginsberg v. New York, 390 U. S. 629 (1968). It
is true that the obscenity standard the Ginsberg Court
adopted for such materials was based on the then-
applicable obscenity standard of Roth v. United
States, 354 U. S. 476 (1957), and Memoirs v.
have not had occasion to decide what effect Miller [v.
California, 413 U. S. 15 (1973)] will have on
the Ginsbergformulation."  Erznoznik v. Jacksonville,
made it abundantly clear that, "under any test of
obscenity as to minors . . . , to be obscene, such
expression must be, in some significant way, erotic.'"
422 U.S. at  422 U. S. 213 n. 10, quoting Cohen v.
California, 403 U.S. at  403 U. S. 20.
Because the Carlin monologue is obviously not an
erotic appeal to the prurient interests of children, the
Court, for the first time, allows the government to
prevent minors from gaining access to materials that
are not obscene, and are therefore protected, as to
them. [Footnote 3/2] It thus ignores our recent
admonition 
Page 438 U. S. 768
237
that
"[s]peech that is neither obscene as to youths nor
subject to some other legitimate proscription cannot
be suppressed solely to protect the young from ideas
or images that a legislative body thinks unsuitable for
them."
422 U.S. at  422 U. S. 213-214. [Footnote 3/3] The
Court's refusal to follow its own pronouncements is
especially lamentable, since it has the anomalous
subsidiary effect, at least in the radio context at issue
here, of making completely unavailable to adults
material which may not constitutionally be kept even
from children. This result violates in spades the
principle of Butler v. Michigan, supra.  Butler involved
a challenge to a Michigan statute that forbade the
publication, sale, or distribution of printed material
"tending to incite minors to violent or depraved or
immoral acts, manifestly tending to the corruption of
the morals of youth." 352 U.S. at  352 U. S. 381.
Although Roth v. United States, supra, had not yet
been decided, it is at least arguable that the material
the statute in Butler was designed to suppress could
have been constitutionally denied to children.
Nevertheless, this Court  C.J., as to why he voted to grant rehearing en banc);
Page 438 U. S. 769
found the statute unconstitutional. Speaking for the
Court, Mr. Justice Frankfurter reasoned:
"The incidence of this enactment is to reduce the adult
population of Michigan to reading only what is fit for
children. It thereby arbitrarily curtails one of those
liberties of the individual, now enshrined in the Due
Process Clause of the Fourteenth Amendment, that
history has attested as the indispensable conditions
for the maintenance and progress of a free society."
352 U.S. at  352 U. S. 383-384. Where, as here, the
government may not prevent the exposure of minors
to the suppressed material, the principle
of Butler applies a fortiori. The opinion of my Brother
POWELL acknowledges that there lurks in today's
decision a potential for "reduc[ing] the adult
population . . . to [hearing] only what is fit for
children,'" ante at  438 U. S. 760, but expresses faith
that the FCC will vigilantly prevent this potential from
ever becoming a reality. I am far less certain than my
Brother POWELL that such faith in the Commission is
warranted, see Illinois Citizens Committee for
Broadcasting v. FCC, 169 U.S.App.D.C. 166, 187-190,
515 F.2d 397, 418-421 (1975) (statement of Bazelon,
and even if I shared it, I could not so easily shirk the
responsibility assumed by each Member of this Court
238
jealously to guard against encroachments on First
Amendment freedoms.
In concluding that the presence of children in the
listening audience provides an adequate basis for the
FCC to impose sanctions for Pacifica's broadcast of the
Carlin monologue, the opinions of my Brother
POWELL, ante at  438 U. S. 757-758, and my Brother
STEVENS, ante at  438 U. S. 749-750, both stress the
time-honored right of a parent to raise his child as he
sees fit -- a right this Court has consistently been
vigilant to protect.  See Wisconsin v. Yoder, 406 U. S.
205 (1972); Pierce v. Society of Sisters, 268 U. S.
510 (1925). Yet this principle supports a  common failing: the lack of principled limits on their
Page 438 U. S. 770
result directly contrary to that reached by the
Court.  Yoder and Pierce hold that parents, not the
government, have the right to make certain decisions
regarding the upbringing of their children. As
surprising as it may be to individual Members of this
Court, some parents may actually find Mr. Carlin's
unabashed attitude towards the seven "dirty words"
healthy, and deem it desirable to expose their children
to the manner in which Mr. Carlin defuses the taboo
surrounding the words. Such parents may constitute a
minority of the American public, but the absence of
great numbers willing to exercise the right to raise
their children in this fashion does not alter the right's
nature or its existence. Only the Court's regrettable
decision does that. [Footnote 3/4]
C
As demonstrated above, neither of the factors relied
on by both the opinion of my Brother POWELL and the
opinion of my Brother STEVENS -- the intrusive nature
of radio and the presence of children in the listening
audience -- can, when taken on its own terms, support
the FCC's disapproval of the Carlin monologue. These
two asserted justifications are further plagued by a
use as a basis for FCC censorship. No such limits come
readily to mind, and neither of the opinions
constituting the Court serves to clarify the extent to
which the FCC may assert the privacy and "children in
the audience" rationales as justification for expunging
from the airways protected communications the
Commission finds offensive. Taken to their logical
extreme, these rationales would support the cleansing
of public 
Page 438 U. S. 771
radio of any "four-letter words" whatsoever,
regardless of their context. The rationales could justify
the banning from radio of a myriad of literary works,
239
novels, poems, and plays by the likes of Shakespeare,
Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert
Burns, and Chaucer; they could support the
suppression of a good deal of political speech, such as
the Nixon tapes; and they could even provide the
basis for imposing sanctions for the broadcast of
certain portions of the Bible. [Footnote 3/5]
In order to dispel the specter of the possibility of so
unpalatable a degree of censorship, and to defuse
Pacifica's overbreadth challenge, the FCC insists that it
desires only the authority to reprimand a broadcaster
on facts analogous to those present in this case, which
it describes as involving
"broadcasting for nearly twelve minutes a record
which repeated over and over words which depict
sexual or excretory activities and organs in a manner
patently offensive by its community's contemporary
standards in the early afternoon when children were
in the audience."
Brief for Petitioner 45. The opinions of both my
Brother POWELL and my Brother STEVENS take the
FCC at its word, and consequently do no more than
permit the Commission to censor the afternoon
broadcast of the "sort of verbal shock treatment,"
opinion of MR. JUSTICE POWELL, ante at  438 U. S. 757,
involved here. To insure that the FCC's regulation of
protected speech does not exceed these bounds, my
Brother POWELL is content to rely upon the judgment
of the 
Page 438 U. S. 772
Commission while my Brother STEVENS deems it
prudent to rely on this Court's ability accurately to
assess the worth of various kinds of speech. [Footnote
3/6] For my own part, even accepting that this case is
limited to its facts, [Footnote 3/7] I would place the
responsibility and the right to weed worthless and
offensive communications from the public airways
where it belongs and where, until today, it resided: in a
public free to choose those communications worthy of
its attention from a marketplace unsullied by the
censor's hand.
II
The absence of any hesitancy in the opinions of my
Brothers POWELL and STEVENS to approve the FCC's
censorship of the Carlin monologue on the basis of
two demonstrably inadequate grounds is a function of
their perception that the decision will result in little, if
any, curtailment of communicative exchanges
protected by the First Amendment. Although the
extent to
240
Page 438 U. S. 773
which the Court stands ready to countenance FCC
censorship of protected speech is unclear from
today's decision, I find the reasoning by which my
Brethren conclude that the FCC censorship they
approve will not significantly infringe on First
Amendment values both disingenuous as to reality
and wrong as a matter of law.
My Brother STEVENS, in reaching a result
apologetically described as narrow, ante at  438 U. S.
750, takes comfort in his observation that "[a]
requirement that indecent language be avoided will
have its primary effect on the form, rather than the
content, of serious communication," ante at  438 U. S.
743 n. 18, and finds solace in his conviction that
"[t]here are few, if any, thoughts that cannot be
expressed by the use of less offensive
language."  Ibid. The idea that the content of a
message and its potential impact on any who might
receive it can be divorced from the words that are the
vehicle for its expression is transparently fallacious. A
given word may have a unique capacity to capsule an
idea, evoke an emotion, or conjure up an image.
Indeed, for those of us who place an appropriately
high value on our cherished First Amendment rights,
the word "censor" is such a word. Mr. Justice Harlan,
speaking for the Court, recognized the truism that a
speaker's choice of words cannot surgically be
separated from the ideas he desires to express when
he warned that
"we cannot indulge the facile assumption that one can
forbid particular words without also running a
substantial risk of suppressing ideas in the process."
Cohen v. California, 403 U.S. at  403 U. S. 26.
Moreover, even if an alternative phrasing may
communicate a speaker's abstract ideas as effectively
as those words he is forbidden to use, it is doubtful
that the sterilized message will convey the emotion
that is an essential part of so many communications.
This, too, was apparent to Mr. Justice Harlan and the
Court in Cohen.
"[W]e cannot overlook the fact, because it is well
illustrated by the episode involved here, that much
linguistic expression serves a dual communicative
function: it conveys
Page 438 U. S. 774
not only ideas capable of relatively precise, detached
explication, but otherwise inexpressible emotions as
well. In fact, words are often chosen as much for their
emotive as their cognitive force. We cannot sanction
241
the view that the Constitution, while solicitous of the
cognitive content of individual speech, has little or no
regard for that emotive function which, practically
speaking, may often be the more important element
of the overall message sought to be communicated."
Id. at  403 U. S. 25-26.
My Brother STEVENS also finds relevant to his First
Amendment analysis the fact that "[a]dults who feel
the need may purchase tapes and records or go to
theaters and nightclubs to hear [the tabooed]
words."  Ante at  438 U. S. 750 n. 28. My Brother
POWELL agrees:
"The Commission's holding does not prevent willing
adults from purchasing Carlin's record, from attending
his performances, or, indeed, from reading the
transcript reprinted as an appendix to the Court's
opinion."
Ante at  438 U. S. 760. The opinions of my Brethren
display both a sad insensitivity to the fact that these
alternatives involve the expenditure of money, time,
and effort that many of those wishing to hear Mr.
Carlin's message may not be able to afford, and a
naive innocence of the reality that, in many cases, the
medium may well be the message.
The Court apparently believes that the FCC's actions
here can be analogized to the zoning ordinances
upheld in Young v. American Mini Theatres, Inc., 427
U. S. 50 (1976). For two reasons, it is wrong. First, the
zoning ordinances found to pass constitutional muster
in Young had valid goals other than the channeling of
protected speech.  Id. at  427 U. S. 71 n. 34 (opinion of
STEVENS, J.); id. at  427 U. S. 80 (POWELL, J.,
concurring). No such goals are present here. Second,
and crucial to the opinions of my Brothers POWELL
and STEVENS in Young -- opinions, which, as they do in
this case, supply the bare five-person majority of the
Court -- the ordinances did not restrict the access of
distributors or exhibitors to the market or impair 
Page 438 U. S. 775
the viewing public's access to the regulated
material.  Id. at  427 U. S. 62,  427 U. S. 71 n. 35
(opinion of STEVENS, J.); id. at  427 U. S. 77 (POWELL, J.,
concurring). Again, this is not the situation here. Both
those desiring to receive Carlin's message over the
radio and those wishing to send it to them are
prevented from doing so by the Commission's actions.
Although, as my Brethren point out, Carlin's message
may be disseminated or received by other means, this
is of little consolation to those broadcasters and
listeners who, for a host of reasons, not least among
242
them financial, do not have access to, or cannot take
advantage of, these other means.
Moreover, it is doubtful that even those frustrated
listeners in a position to follow my Brother POWELL's
gratuitous advice and attend one of Carlin's
performances or purchase one of his records would
receive precisely the same message Pacifica's radio
station sent its audience. The airways are capable not
only of carrying a message, but also of transforming it.
A satirist's monologue may be most potent when
delivered to a live audience; yet the choice whether
this will in fact be the manner in which the message is
delivered and received is one the First Amendment
prohibits the government from making.
III
It is quite evident that I find the Court's attempt to
unstitch the warp and woof of First Amendment law in
an effort to reshape its fabric to cover the patently
wrong result the Court reaches in this case dangerous,
as well as lamentable. Yet there runs throughout the
opinions of my Brothers POWELL and STEVENS
another vein I find equally disturbing: a depressing
inability to appreciate that, in our land of cultural
pluralism, there are many who think, act, and talk
differently from the Members of this Court, and who
do not share their fragile sensibilities. It is only an
acute ethnocentric myopia that enables the Court to
approve the censorship of communications solely
because of the words they contain.
Page 438 U. S. 776
"A word is not a crystal, transparent and unchanged, it
is the skin of a living thought, and may vary greatly in
color and content according to the circumstances and
the time in which it is used."
Towne v. Eisner, 245 U. S. 418,  245 U. S. 425 (1918)
(Holmes, J.). The words that the Court and the
Commission find so unpalatable may be the stuff of
everyday conversations in some, if not many, of the
innumerable subcultures that compose this Nation.
Academic research indicates that this is indeed the
case.  See B. Jackson, "Get Your Ass in the Water and
Swim Like Me" (1974); J. Dillard, Black English (1972);
W. Labov, Language in the Inner City: Studies in the
Black English Vernacular (1972). As one researcher
concluded,
"[w]ords generally considered obscene, like 'bullshit'
and 'fuck' are considered neither obscene nor
derogatory in the [black] vernacular except in
particular contextual situations and when used with
certain intonations."
243
C. Bins, "Toward an Ethnography of Contemporary
African American Oral Poetry," Language and
Linguistics Working Papers No. 5, p. 82 (Georgetown
Univ. Press 1972).  Cf. Keefe v. Geanakos, 418 F.2d 359,
361 (CA1 1969) (finding the use of the word
"motherfucker" commonplace among young radicals
and protesters).
Today's decision will thus have its greatest impact on
broadcasters desiring to reach, and listening
audiences composed of, persons who do not share
the Court's view as to which words or expressions are
acceptable and who, for a variety of reasons, including
a conscious desire to flout majoritarian conventions,
express themselves using words that may be regarded
as offensive by those from different socio-economic
backgrounds. [Footnote 3/8]  Where I refer without differentiation to the actions of
Page 438 U. S. 777
In this context, the Court's decision may be seen for
what, in the broader perspective, it really is: another of
the dominant culture's inevitable efforts to force those
groups who do not share its mores to conform to its
way of thinking, acting, and speaking.  See Moore v.
East Cleveland, 431 U. S. 494,  431 U. S. 506-511 (1977)
(BRENNAN, J., concurring).
Pacifica, in response to an FCC inquiry about its
broadcast of Carlin's satire on "the words you couldn't
say on the public . . . airways,'" explained that "Carlin is
not mouthing obscenities, he is merely using words to
satirize as harmless and essentially silly our attitudes
towards those words." 56 F.C.C.2d at 95, 96. In
confirming Carlin's prescience as a social
commentator by the result it reaches today, the Court
evinces an attitude toward the "seven dirty words"
that many others besides Mr. Carlin and Pacifica might
describe as "silly." Whether today's decision will
similarly prove "harmless" remains to be seen. One
can only hope that it will.
[Footnote 3/1]
"the Court," my reference is to this majority, which
consists of my Brothers POWELL and STEVENS and
those Members of the Court joining their separate
opinions.
[Footnote 3/2]
Even if the monologue appealed to the prurient
interest of minors, it would not be obscene as to them
unless, as to them, "the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
244
value."  Miller v. California, 413 U. S. 15,  413 U. S.
24 (1973).
[Footnote 3/3]
It may be that a narrowly drawn regulation prohibiting
the use of offensive language on broadcasts directed
specifically at younger children constitutes one of the
"other legitimate proscription[s]" alluded to
in Erznoznik. This is so both because of the difficulties
inherent in adapting the Miller formulation to
communications received by young children, and
because such children are "not possessed of that full
capacity for individual choice which is the
presupposition of the First Amendment
guarantees."  Ginsberg v. New York, 390 U. S. 629,  390
U. S. 649-650 (1968) (STEWART, J., concurring). I doubt,
as my Brother STEVENS suggests, ante at 438 U. S.
745 n. 20, that such a limited regulation amounts to a
regulation of speech based on its content, since, by
hypothesis, the only persons at whom the regulated
communication is directed are incapable of evaluating
its content. To the extent that such a regulation is
viewed as a regulation based on content, it marks the
outermost limits to which content regulation is
permissible.
[Footnote 3/4]
The opinions of my Brothers POWELL and STEVENS
rightly refrain from relying on the notion of "spectrum
scarcity" to support their result. As Chief Judge
Bazelon noted below, "although scarcity has
justified increasing the diversity of speakers and
speech, it has never been held to justify censorship."
181 U.S.App.D.C. at 152, 556 F.2d at 29 (emphasis in
original).  See Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367,  395 U. S. 396 (1969).
[Footnote 3/5]
See, e.g., I Samuel 25:22: "So and more also do God
unto the enemies of David, if I leave of all that pertain
to him by the morning light any that pisseth against
the wall"; II Kings 18:27 and Isaiah 36:12: "[H]ath he
not sent me to the men which sit on the wall, that they
may eat their own dung, and drink their own piss with
you?"; Ezekiel 23:3: "And they committed whoredoms
in Egypt; they committed whoredoms in their youth;
there were their breasts pressed, and there they
bruised the teats of their virginity."; Ezekiel 23:21:
"Thus thou calledst to remembrance the lewdness of
thy youth, in bruising thy teats by the Egyptians for the
paps of thy youth." The Holy Bible (King James Version)
(Oxford 1897).
[Footnote 3/6]
245
Although ultimately dependent upon the outcome of
review in this Court, the approach taken by my
Brother STEVENS would not appear to tolerate the
FCC's suppression of any speech, such as political
speech, falling within the core area of First
Amendment concern. The same, however, cannot be
said of the approach taken by my Brother POWELL,
which, on its face, permits the Commission to censor
even political speech if it is sufficiently offensive to
community standards. A result more contrary to
rudimentary First Amendment principles is difficult to
imagine.
[Footnote 3/7]
Having insisted that it seeks to impose sanctions on
radio communications only in the limited
circumstances present here, I believe that the FCC is
estopped from using either this decision or its own
orders in this case, 56 F.C.C.2d 94 (1975) and 59
F.C.C.2d 892 (1976), as a basis for imposing sanctions
on any public radio broadcast other than one aired
during the daytime or early evening and containing
the relentless repetition, for longer than a brief
interval, of
"language that describes, in term patently offensive as
measured by contemporary community standards for
the broadcast medium, sexual or excretory activities
and organs."
56 F.C.C.2d at 98. For surely broadcasters are not now
on notice that the Commission desires to regulate any
offensive broadcast other than the type of "verbal
shock treatment" condemned here, or even this
"shock treatment" type of offensive broadcast during
the late evening.
[Footnote 3/8]
Under the approach taken by my Brother POWELL, the
availability of broadcasts about groups whose
members constitute such audiences might also be
affected. Both news broadcasts about activities
involving these groups and public affairs broadcasts
about their concerns are apt to contain interviews,
statements, or remarks by group leaders and
members which may contain offensive language to an
extent my Brother POWELL finds unacceptable.
MR. JUSTICE STEWART, with whom MR. JUSTICE
BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE
MARSHALL join, dissenting.
The Court today recognizes the wise admonition that
we should "avoid the unnecessary decision of
[constitutional] issues."  Ante at  438 U. S. 734. But it
246
disregards one important application of this salutary
principle -- the need to construe an Act of Congress so
as to avoid, if possible, passing upon its
constitutionality. [Footnote 4/1] It is apparent that the
constitutional questions raised by the order of the
Commission in this case are substantial. [Footnote
4/2] Before deciding them, we should be certain that it
is necessary to do so.  context of electronic broadcasting.
Page 438 U. S. 778
The statute pursuant to which the Commission acted,
18 U.S.C. § 1464 (1976 ed.), [Footnote 4/3] makes it a
federal offense to utter "any obscene, indecent, or
profane language by means of radio communication."
The Commission held, and the Court today agrees,
that "indecent" is a broader concept than "obscene" as
the latter term was defined in Miller v. California, 413
U. S. 15, because language can be "indecent" although
it has social, political, or artistic value and lacks
prurient appeal. 56 F.C.C.2d 94, 97-98. [Footnote 4/4]
But this construction of § 1464, while perhaps
plausible, is by no means compelled. To the contrary, I
think that "indecent" should properly be read as
meaning no more than "obscene." Since the Carlin
monologue concededly was not "obscene," I believe
that the Commission lacked statutory authority to ban
it. Under this construction of the statute, it is
unnecessary to address the difficult and important
issue of the Commission's constitutional power to
prohibit speech that 
Page 438 U. S. 779
would be constitutionally protected outside the
This Court has recently decided the meaning of the
term "indecent" in a closely related statutory context.
In Hamling v. United States, 418 U. S. 87, the petitioner
was convicted of violating 18 U.S.C. § 1461, which
prohibits the mailing of "[e]very obscene, lewd,
lascivious, indecent, filthy or vile article." The Court
"construe[d] the generic terms in [§ 1461] to be limited
to the sort of "patently offensive representations or
descriptions of that specific hard core' sexual conduct
given as examples in Miller v. California."" 
418 U.S. at  418 U. S. 114, quoting United States v. 12
200-ft. Reels of Film, 413 U. S. 123,  413 U. S. 130 n. 7.
Thus, the clear holding of Hamling is that "indecent,"
as used in § 1461, has the same meaning as "obscene"
as that term was defined in the Miller case.  See also
Marks v. United States,430 U. S. 188,  430 U. S. 190 (18
U.S.C. § 1465).
247
Nothing requires the conclusion that the word
"indecent" has any meaning in § 1464 other than that
ascribed to the same word in § 1461. [Footnote 4/5]
Indeed, although the legislative history is largely silent,
[Footnote 4/6] such indications as there are support
the view that § 1461 and 1464 should be construed
similarly. The view that "indecent" means no more
than "obscene" in § 1461 and similar statutes long
antedated Hamling.  See United States v. Bennett, 24
F.Cas. 1093 (No. 14,571) (CC SDNY 1879); Dunlop v.
United States, 165 U. S. 486,  165 U. S. 500-501;  569; Ashwander v. TVA, 297 U. S. 288,  297 U. S.
Page 438 U. S. 780
Manual Enterprises v. Day, 370 U. S. 478,  370 U. S.
482-484,  370 U. S. 487 (opinion of Harlan, J.).
[Footnote 4/7] And although §§ 1461 and 1464 were
originally enacted separately, they were codified
together in the Criminal Code of 1848 as part of a
chapter entitled "Obscenity." There is nothing in the
legislative history to suggest that Congress intended
that the same word in two closely related sections
should have different meanings.  See H.R.Rep. No.
304, 80th Cong., 1st Sess., A104-A106 (1947).
I would hold, therefore, that Congress intended, by
using the word "indecent" in § 1464, to prohibit
nothing more than obscene speech. [Footnote 4/8]
Under that reading of the statute, the Commission's
order in this case was not authorized, and on that
basis, I would affirm the judgment of the Court of
Appeals.
[Footnote 4/1]
See, e.g., Johnson v. Robison, 415 U. S. 361,  415 U. S.
366-367; United States v. Thirty-seven
Photographs, 402 U. S. 363,  402 U. S. 369; Rescue
Army v. Municipal Court, 331 U. S. 549,  331 U. S.
348 (Brandeis, J., concurring); Crowell v. Benson,285 U.
S. 22,  285 U. S. 62.
[Footnote 4/2]
The practice of construing a statute to avoid a
constitutional confrontation is followed whenever
there is "a serious doubt'" as to the statute's
constitutionality.  E.g., United States v. Rumely, 345 U.
S. 41,  345 U. S. 45; Blodgett v. Holden, 275 U. S.
142,  275 U. S. 148 (opinion of Holmes, J.). Thus, the
Court has construed a statute to avoid raising a doubt
as to its constitutionality even though the Court later
in effect held that the statute, otherwise construed,
would have been constitutionally valid. Compare
General Motors Corp. v. District of Columbia, 380 U. S.
553, with Moorman Mfg. Co. v. Bair,437 U. S. 267.
248
[Footnote 4/3] [Footnote 4/5]

The Court properly gives no weight to the The only Federal Court of Appeals (apart from this
Commission's passing reference in its order to 47 case) to consider the question has held that
U.S.C. § 303(g).  Ante at  438 U. S. 739 n. 13. For one
thing, the order clearly rests only upon the "'obscene' and 'indecent' in § 1464 are to be read as
Commission's interpretation of the term "indecent" in parts of a single proscription, applicable only if the
§ 1464; the attempt by the Commission in this Court to challenged language appeals to the prurient interest."
assert that § 303(g) was an independent basis for its
action must fail.  Cf. SEC v. Chenery Corp., 318 U. S. United States v. Simpson, 561 F.2d 53, 60 (CA7).
80,  318 U. S. 94-95; SEC v. Sloan, 436 U. S. 103,  436 U.
[Footnote 4/6]
S. 117-118. Moreover, the general language of § 303(g)
cannot be used to circumvent the terms of a specific
Section 1464 originated as part of § 29 of the Radio Act
statutory mandate such as that of § 1464.
of 1927, 44 Stat. 1172, which was reenacted as § 326
of the Communications Act of 1934, 48 Stat. 1091.
"[T]he Commission's power in this respect is limited by
Neither the committee reports nor the floor debates
the scope of the statute. Unless the [language]
contain any discussion of the meaning of "obscene,
involved here [is] illegal under § [1464], the
indecent or profane language."
Commission cannot employ the statute to make [it] so
by agency action."
[Footnote 4/7]
FCC v. American Broadcasting Co., 347 U. S. 284,  347
When the Federal Communications Act was amended
U. S. 290.
in 1968 to prohibit "obscene, lewd, lascivious, filthy, or
indecent" telephone calls, 82 Stat. 112, 47 U.S.C. § 223,
[Footnote 4/4]
the FCC itself indicated that it thought this language
The Commission did not rely on § 1464's prohibition of covered only "obscene" telephone calls.  See H.R.Rep.
"profane" language, and it is thus unnecessary to No. 1109, 90th Cong., 2d Sess., 7-8 (1968).
consider the scope of that term.

249
[Footnote 4/8]

This construction is further supported by the general

rule of lenity in construing criminal statutes.  See
Adamo Wrecking Co. v. United States, 434 U. S.
275,  434 U. S. 285. The Court's statement that it need
not consider the meaning § 1464 would have in a
criminal prosecution, ante at  438 U. S. 739 n. 13, is
contrary to settled precedent:

"It is true . . . that these are not criminal cases, but it is

a criminal statute that we must interpret. There
cannot be one construction for the Federal
Communications Commission and another for the
Department of Justice. If we should give § [1464] the
broad construction urged by the Commission, the
same construction would likewise apply in criminal
cases."

FCC v. American Broadcasting Co., supra at  347 U. S.

296.

250