Mtrcb Case

8/12/2019 Mtrcb Case

1/30

CONSTI 2CH.12FREEDOM OF RELIGION 1MTRCB CASE

Republic of the Philippines SUPREME COURT ManilaEN BANC

G.R. No. 119673 July 26, 1996

IGLESIA NI CRISTO, (INC.), petitioner, vs. THEHONORABLE COURT OF APPEALS, BOARD OFREVIEW FOR MOVING PICTURES AND TELEVISIONand HONORABLE HENRIETTA S. MENDOZA,respondents.

PUNO, J .:p

This is a petition for review of the Decision dated March24, 1995 of the respondent Court of Appeals affirming theaction of the respondent Board of Review for MovingPictures and Television which x-rated the TV Program"Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religiousorganization, has a television program entitled "AngIglesia ni Cristo" aired on Channel 2 every Saturday andon Channel 13 every Sunday. The program presents and

propagates petitioner's religious beliefs, doctrines andpractices often times in comparative studies with otherreligions.

Sometime in the months of September, October andNovember 1992 petitioner submitted to the respondentBoard of Review for Moving Pictures and Television theVTR tapes of its TV program Series Nos. 116, 119, 121and 128. The Board classified the series as "X" or not forpublic viewing on the ground that they "offend andconstitute an attack against other religions which isexpressly prohibited by law."

Petitioner pursued two (2) courses of action against therespondent Board. On November 28, 1992, it appealed tothe Office of the President the classification of its TVSeries No. 128. It succeeded in its appeal for onDecember 18, 1992, the Office of the President reversedthe decision of the respondent Board. Forthwith, theBoard allowed Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against therespondent Board Civil Case No. Q-92-14280, with theRTC, NCR Quezon City.

1 Petitioner alleged that the

respondent Board acted without jurisdiction or with graveabuse of discretion in requiring petitioner to submit theVTR tapes of its TV program and in x-rating them. It citedits TV Program Series Nos. 115, 119, 121 and 128. Intheir Answer, respondent Board invoked its power underPD No. 1986 in relation to Article 201 of the RevisedPenal Code.

On January 4, 1993, the trial court held a hearing onpetitioner's prayer for a writ of preliminary injunction. Theparties orally argued and then marked their documentaryevidence. Petitioner submitted the following as itsexhibits, viz.:

(1) Exhibit "A," respondent Board's Voting Slip forTelevision showing its September 9, 1992 action on

petitioner's Series No. 115 as follows:

2

REMARKS:

There are some inconsistencies in the particular programas it is very surprising for this program to show series ofCatholic ceremonies and also some religious sects andusing it in their discussion about the bible. There areremarks which are direct criticism which affect otherreligions.

Need more opinions for this particular program. Pleasesubject to more opinions.

(2) Exhibit "A-1," respondent Board's Voting Slip forTelevision showing its September 11, 1992 subsequentaction on petitioner's Series No. 115 as follows:

3

REMARKS:

This program is criticizing different religions, based ontheir own interpretation of the Bible.

We suggest that the program should delve on explainingtheir own faith and beliefs and avoid attacks on other

faith.

(3) Exhibit "B," respondent Board's Voting Slip forTelevision showing its October 9, 1992 action onpetitioner's Series No. 119, as follows:

4

REMARKS:

The Iglesia ni Cristo insists on the literal translation of thebible and says that our (Catholic) veneration of the VirginMary is not to be condoned because nowhere it is foundin the bible that we should do so.

This is intolerance and robs off all sects of freedom ofchoice, worship and decision.

(4) Exhibit "C," respondent Board's Voting Slip forTelevision showing its October 20, 1992 action onpetitioner's Series No. 121 as follows:

5

REMARKS:

I refuse to approve the telecast of this episode for reasonsof the attacks, they do on, specifically, the Catholic

religion.

I refuse to admit that they can tell, dictate any otherreligion that they are right and the rest are wrong, whichthey clearly present in this episode.


2/30

CONSTI 2CH.12FREEDOM OF RELIGION 2(5) Exhibit "D," respondent Board's Voting Slip forTelevision showing its November 20, 1992 action onpetitioner's Series No. 128 as follows:

6

REMARKS:

The episode presented criticizes the religious beliefs ofthe Catholic and Protestant's beliefs.

We suggest a second review.

(6) Exhibits "E," "E-1," petitioner's block time contract withABS-CBN Broadcasting Corporation dated September 1,1992.

7

(7) Exhibit "F," petitioner's Airtime Contract with IslandBroadcasting Corporation.

8

(8) Exhibit "G," letter dated December 18, 1992 of formerExecutive Secretary Edelmiro A. Amante, Sr., addressed

for Henrietta S. Mendez reversing the decision of therespondent Board which x-rated the showing ofpetitioner's Series No. 129. The letter reads in part:

xxx xxx xxx

The television episode in question is protected by theconstitutional guarantee of free speech and expressionunder Article III, section 4 of the 1987 Constitution.

We have viewed a tape of the television episode inquestion, as well as studied the passages found byMTRCB to be objectionable and we find no indication thatthe episode poses any clear and present danger sufficientto limit the said constitutional guarantee.

(9) Exhibits "H," "H-1," letter dated November 26, 1992 ofTeofilo C. Ramos, Sr., addressed to President Fidel V.Ramos appealing the action of the respondent Board x-rating petitioner's Series No. 128.

On its part, respondent Board submitted the followingexhibits, viz.:

(1) Exhibit "1," Permit Certificate for Television Exhibition

No. 15181 dated December 18, 1992 allowing theshowing of Series No. 128 under parental guidance.

(2) Exhibit "2," which is Exhibit "G" of petitioner.

(3) Exhibit "3," letter dated October 12, 1992 of HenriettaS. Mendez, addressed to the Christian Era BroadcastingService which reads in part:

xxx xxx xxx

In the matter of your television show "Ang Iglesia ni

Cristo" Series No. 119, please be informed that the Boardwas constrained to deny your show a permit to exhibit.The material involved constitute an attack against anotherreligion which is expressly prohibited by law. Please beguided in the submission of future shows.

After evaluating the evidence of the parties, the trial courtissued a writ of preliminary injunction on petitioner's bondo P10,000.00.

The trial court set the pre-trial of the case and the partiessubmitted their pre-trial briefs.

9The pre-trial briefs show

that the parties' evidence is basically the evidence theysubmitted in the hearing of the issue of preliminary

injunction. The trial of the case was set and reset severaltimes as the parties tried to reach an amicable accord.Their efforts failed and the records show that aftersubmission of memoranda, the trial court rendered aJudgment,

10 on December 15, 1993, the dispositive

portion of which reads:

xxx xxx xxx

WHEREFORE, judgment is hereby rendered orderingrespondent Board of Review for Moving Pictures andTelevision (BRMPT) to grant petitioner Iglesia ni Cristothe necessary permit for all the series of "Ang Iglesia ni

Cristo" program.

Petitioner Iglesia ni Cristo, however, is directed to refrainfrom offending and attacking other existing religions inshowing "Ang Iglesia ni Cristo" program.

SO ORDERED.

Petitioner moved for reconsideration11

praying: (a) for thedeletion of the second paragraph of the dispositive portionof the Decision, and (b) for the Board to be perpetuallyenjoined from requiring petitioner to submit for review the

tapes of its program. The respondent Board opposed themotion.

12 On March 7, 1993, the trial court granted

petitioner's Motion for Reconsideration. It ordered:13

xxx xxx xxx

WHEREFORE, the Motion for Reconsideration is granted.The second portion of the Court's Order dated December15, 1993, directing petitioner to refrain from offending andattacking other existing religions in showing "Ang Iglesiani Cristo" program is hereby deleted and set aside.Respondents are further prohibited from requiringpetitioner Iglesia ni Cristo to submit for review VTR tapes

of its religious program "Ang Iglesia ni Cristo."

Respondent Board appealed to the Court of Appeals afterits motion for reconsideration was denied.

14

On March 5, 1995, the respondent Court of Appeals 15

reversed the trial court. It ruled that: (1) the respondentboard has jurisdiction and power to review the TVprogram "Ang Iglesia ni Cristo," and (2) the respondentBoard did not act with grave abuse of discretion when itdenied permit for the exhibition on TV of the three seriesof "Ang Iglesia ni Cristo" on the ground that the materials

constitute an attack against another religion. It also foundthe series "indecent, contrary to law and contrary to goodcustoms.

In this petition for review on certiorari under Rule 45,petitioner raises the following issues:


3/30

CONSTI 2CH.12FREEDOM OF RELIGION 3I

WHETHER OR NOT THE HONORABLE COURT OFAPPEALS ERRED IN HOLDING THAT THE "ANGIGLESIA NI CRISTO" PROGRAM IS NOTCONSTITUTIONALLY PROTECTED AS A FORM OFRELIGIOUS EXERCISE AND EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OFAPPEALS ERRED IN NOT HOLDING THAT BEING ANEXERCISE OF RELIGIOUS FREEDOM, THE "ANGIGLESIA NI CRISTO" PROGRAM IS SUBJECT TO THEPOLICE POWER OF THE STATE ONLY IN THEEXTREME CASE THAT IT POSES A CLEAR ANDPRESENT DANGER.

III

WHETHER OR NOT THE HONORABLE COURT OFAPPEALS ERRED IN HOLDING THAT THE MTRCB ISVESTED WITH THE POWER TO CENSOR RELIGIOUSPROGRAMS.

IV

WHETHER OR NOT THE HONORABLE COURT OFAPPEALS ERRED IN HOLDING THAT THE "ANGIGLESIA NI CRISTO," A PURELY RELIGIOUSPROGRAM IS INDECENT AND CONTRARY TO LAW

AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first,whether the respondent Board has the power to reviewpetitioner's TV program "Ang Iglesia ni Cristo," and (2)second, assuming it has the power, whether it gravelyabused its discretion when it prohibited the airing ofpetitioner's religious program, series Nos. 115, 119 and121, for the reason that they constitute an attack againstother religions and that they are indecent, contrary to lawand good customs.

The first issue can be resolved by examining the powersof the Board under PD No. 1986. Its section 3 pertinentlyprovides:

Sec. 3 Powers and Functions. -- The BOARD shall have

the following functions, powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures asherein defined, television programs, including publicitymaterials such as advertisements, trailers and stills,whether such motion pictures and publicity materials befor theatrical or non-theatrical distribution for televisionbroadcast or for general viewing, imported or produced in

the Philippines and in the latter case, whether they be forlocal viewing or for export.

c) To approve, delete objectionable portion from and/orprohibit the importation, exportation, production, copying,distribution, sale, lease, exhibition and/or television

broadcast of the motion pictures, television programsandpublicity materials, subject of the preceding paragraph,which, in the judgment of the BOARD applyingcontemporary Filipino cultural values as standard, areobjectionable for being immoral, indecent, contrary to lawand/or good customs, injurious to the prestige of theRepublic of the Philippines and its people, or with adangerous tendency to encourage the commission ofviolence or of a wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection,rebellion or sedition against the State, or otherwisethreaten the economic and/or political stability of theState;

ii) Those which tend to undermine the faith andconfidence of the people, their government and/or dulyconstituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy themarket for violence or pornography;

v) Those which tend to abet the traffic in and use ofprohibited drugs;

vi) Those which are libelous or defamatory to the goodname and reputation of any person, whether living ordead;

vii) Those which may constitute contempt of court or ofanyquasi-judicial tribunal, or pertain to matters which are

subjudice in nature (emphasis ours).

The law gives the Board the power to screen, review andexamine all "television programs." By the clear terms ofthe law, the Board has the power to "approve, delete . . .and/or prohibit the . . . exhibition and/or televisionbroadcast of . . . television programs . . ." The law alsodirects the Board to apply "contemporary Filipino culturalvalues as standard" to determine those which areobjectionable for being "immoral, indecent, contrary to lawand/or good customs, injurious to the prestige of theRepublic of the Philippines and its people, or with adangerous tendency to encourage the commission of

violence or of a wrong or crime."

Petitioner contends that the term "television program"should not include religious programs like its program"Ang Iglesia ni Cristo." A contrary interpretation, it isurged, will contravene section 5, Article III of theConstitution which guarantees that "no law shall be maderespecting an establishment of religion, or prohibiting thefree exercise thereof. The free exercise and enjoyment ofreligious profession and worship, without discrimination orpreference, shall forever be allowed."

We reject petitioner's submission which need not set usadrift in a constitutional voyage towards an unchartedsea. Freedom of religion has been accorded a preferredstatusby the framers of our fundamental laws, past andpresent. We have affirmed this preferred status wellaware that it is "designed to protect the broadest possible


4/30

CONSTI 2CH.12FREEDOM OF RELIGION 4liberty of conscience, to allow each man to believe as hisconscience directs, to profess his beliefs, and to live as hebelieves he ought to live, consistent with the liberty ofothers and with the common good."

16 We have also

laboriously defined in our jurisprudence the intersectingumbras and penumbras of the right to religious professionand worship. To quote the summation of Mr. JusticeIsagani Cruz, our well-known constitutionalist:

17

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act onone's beliefs. The first is absolute as long as the belief isconfined within the realm of thought. The second issubject to regulation where the belief is translated intoexternal acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he

pleases concerning the hereafter. He may indulge his owntheories about life and death; worship any god hechooses, or none at all; embrace or reject any religion;acknowledge the divinity of God or of any being thatappeals to his reverence; recognize or deny theimmortality of his soul -- in fact, cherish any religiousconviction as he and he alone sees fit. However absurdhis beliefs may be to others, even if they be hostile andheretical to the majority, he has full freedom to believe ashe pleases. He may not be required to prove his beliefs.He may not be punished for his inability to do so. Religion,after all, is a matter of faith. "Men may believe what theycannot prove." Every one has a right to his beliefs and hemay not be called to account because he cannot provewhat he believes.

(2) Freedom to Act on One's Beliefs

But where the individual externalizes his beliefs in acts oromissions that affect the public, his freedom to do sobecomes subject to the authority of the State . As great asthis liberty may be, religious freedom, like all the otherrights guaranteed in the Constitution, can be enjoyed onlywith a proper regard for the rights of others. It is error tothink that the mere invocation of religious freedom will

stalemate the State and render it impotent in protectingthe general welfare. The inherent police power can beexercised to prevent religious practices inimical to society.

And this is true even if such practices are pursued out ofsincere religious conviction and not merely for thepurpose of evading the reasonable requirements orprohibitions of the law.

Justice Frankfurter put it succinctly: "The constitutionalprovision on religious freedom terminated disabilities, itdid not create new privileges. It gave religious liberty, notcivil immunity. Its essence is freedom from conformity toreligious dogma, not freedom from conformity to law

because of religious dogma.

Accordingly, while one has lull freedom to believe inSatan, he may not offer the object of his piety a humansacrifice, as this would be murder. Those who literallyinterpret the Biblical command to "go forth and multiply"

are nevertheless not allowed to contract plural marriagesin violation of the laws against bigamy. A person cannotrefuse to pay taxes on the ground that it would be againsthis religious tenets to recognize any authority except thatof God alone. An atheist cannot express in his disbelief inact of derision that wound the feelings of the faithful. Thepolice power can validly asserted against the Indianpractice of the suttee, born of deep religious conviction,that calls on the widow to immolate herself at the funeral

pile of her husband.

We thus reject petitioner's postulate that its religiousprogram is per se beyond review by the respondentBoard. Its public broadcast on TV of its religious programbrings it out of the bosom of internal belief. Television is amedium that reaches even the eyes and ears of children.The Court iterates the rule that the exercise of religiousfreedom can be regulated by the State when it will bringabout the clear and present danger of some substantiveevil which the State is duty bound to prevent, i.e., serious

detriment to the more overriding interest of public health,

public morals, or public welfare. A laissez fairepolicy onthe exercise of religion can be seductive to the liberalmind but history counsels the Court against its blindadoption as religion is and continues to be a volatile areaof concern in our country today. Across the sea and in ourshore, the bloodiest and bitterest wars fought by menwere caused by irreconcilable religious differences. Ourcountry is still not safe from the recurrence of thisstultifying strife considering our warring religious beliefsand the fanaticism with which some of us cling and clawto these beliefs. Even now, we have yet to settle the nearcentury old strife in Mindanao, the roots of which havebeen nourished by the mistrust and misunderstanding

between our Christian and Muslim brothers and sisters.The bewildering rise of weird religious cults espousingviolence as an article of faith also proves the wisdom ofour rule rejecting a strict let alone policy on the exercise ofreligion. For sure, we shall continue to subject any actpinching the space for the free exercise of religion to aheightened scrutiny but we shall not leave its rationalexercise to the irrationality of man. For when religiondivides and its exercise destroys, the State should notstand still.

It is also petitioner's submission that the respondentappellate court gravely erred when it affirmed the ruling of

the respondent Board x-rating its TV Program Series Nos.115, 119, 121 and 128. The records show that therespondent Board disallowed the program series for"attacking" other religions. Thus, Exhibits "A," "A-1,"(respondent Board's Voting Slip for Television) reveal thatits reviewing members x-rated Series 115 for ". . .criticizing different religions, based on their owninterpretation of the Bible." They suggested that theprogram should only explain petitioner's ". . . own faithand beliefs and avoid attacks on other faiths." Exhibit "B"shows that Series No. 119 was x-rated because "theIglesia ni Cristo insists on the literal translation of the bibleand says that our Catholic veneration of the Virgin Mary is

not to be condoned because nowhere it is found in thebible that we should do so. This is intolerance . . ." Exhibit"C" shows that Series No. 121 was x-rated ". . . forreasons of the attacks, they do on, specifically, theCatholic religion. . . . (T)hey can not tell, dictate any otherreligion that they are right and the rest are wrong . . ."


5/30

CONSTI 2CH.12FREEDOM OF RELIGION 5Exhibit "D" also shows that Series No. 128 was notfavorably recommended because it ". . . outrages Catholicand Protestant's beliefs." On second review, it was x-rated because of its "unbalanced interpretations of someparts of the bible."

18 In sum, the respondent Board x-

rated petitioner's TV program series Nos. 115, 119, 121and 128 because of petitioner's controversial biblicalinterpretations and its "attacks" against contrary religiousbeliefs. The respondent appellate court agreed and even

held that the said "attacks" are indecent, contrary to lawand good customs.

We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is itshostility against all prior restraints on speech, includingreligious speech. Hence, any act that restrains speech ishobbled by the presumption of invalidity and should begreeted with furrowed brows.

19 It is the burden of the

respondent Board to overthrow this presumption. If it failsto discharge this burden, its act of censorship will be

struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Boardx-rated petitioners TV series for "attacking" eitherreligions, especially the Catholic church. An examinationof the evidence, especially Exhibits "A," "A-1," "B," "C,"and "D" will show that the so-called "attacks" are merecriticisms of some of the deeply held dogmas and tenets

of other religions. The videotapes were not viewed by therespondent court as they were not presented as evidence.Yet they were considered by the respondent court asindecent, contrary to law and good customs, hence, canbe prohibited from public viewing under section 3(c) of PD

1986. This ruling clearly suppresses petitioner's freedomof speech and interferes with its right to free exercise ofreligion. It misappreciates the essence of freedom to differas delineated in the benchmark case of Cantwell v.Connecticut, so viz.:

20

xxx xxx xxx

In the realm of religious faith, and in that of political belief,sharp differences arise. In both fields, the tenets of oneman may seem the rankest error to his neighbor. Topersuade others to his own point of view, the pleader, as

we know, at times, resorts to exaggeration, to vilificationof men who have been, or are prominent in church orstate or even to false statements. But the people of thisnation have ordained in the light of history that inspite ofthe probability of excesses and abuses, these libertiesare, in the long view, essential to enlightened opinion andright conduct on the part of the citizens of democracy.

The respondent Board may disagree with the criticisms ofother religions by petitioner but that gives it no excuse tointerdict such criticisms, however, unclean they may be.Under our constitutional scheme, it is not the task of theState to favor any religion by protecting it against an

attack by another religion. Religious dogmas and beliefsare often at war and to preserve peace among theirfollowers, especially the fanatics, the establishmentclause of freedom of religion prohibits the State fromleaning towards any religion. Vis-a-vis religiousdifferences, the State enjoys no banquet of options.

Neutrality alone is its fixed and immovable stance. In fine,respondent board cannot squelch the speech of petitionerIglesia ni Cristo simply because it attacks other religions,even if said religion happens to be the most numerouschurch in our country. In a State where there ought to beno difference between the appearance and the reality offreedom of religion, the remedy against bad theology isbetter theology. The bedrock of freedom of religion isfreedom of thought and it is best served by encouraging

the marketplace of dueling ideas. When the luxury of timepermits, the marketplace of ideas demands that speechshould be met by more speech for it is the spark ofopposite speech, the heat of colliding ideas that can fanthe embers of truth.

Third. The respondents cannot also rely on the ground"attacks against another religion" in x-rating the religiousprogram of petitioner. Even a sideglance at section 3 ofPD No. 1986 will reveal that it is not among the groundsto justify an order prohibiting the broadcast of petitioner'stelevision program. The ground "attack against another

religion" was merely added by the respondent Board in itsRules.21

This rule is void for it runs smack against thehoary doctrine that administrative rules and regulationscannot expand the letter and spirit of the law they seek toenforce.

It is opined that the respondent board can still utilize"attack against any religion" as a ground allegedly ". . .because section 3 (c) of PD No. 1986 prohibits theshowing of motion pictures, television programs andpublicity materials which are contrary to law and Article201 (2) (b) (3) of the Revised Penal Code punishesanyone who exhibits "shows which offend any race or

religion." We respectfully disagree for it is plain that theword "attack" is not synonymous with the word "offend."Moreover, Article 201 (2) (b) (3) of the Revised PenalCode should be invoked to justify the subsequentpunishment of a show which offends any religion. Itcannot be utilized to justifyprior censorship of speech. Itmust be emphasized that E.O. 876, the law prior to PD1986, included "attack against any religion" as a groundfor censorship. The ground was not, however, carriedover by PD 1986. Its deletion is a decree to disuse it.There can be no other intent. Indeed, even the ExecutiveDepartment espouses this view.

Thus, in an Opinion dated November 28, 1985 thenMinister of Justice, now President of the Senate, NeptaliGonzales explained:

xxx xxx xxx

However, the question whether the BRMPT (nowMTRCB) may preview and censor the subject televisionprogram of INC should be viewed in the light of theprovision of Section 3, paragraph (c) of PD 1986, which issubstantially the same as the provision of Section 3,paragraph (c) of E.O. No. 876-A, which prescribes the

standards of censorship, to wit: "immoral, indecent,contrary to law and/or good customs, injurious to theprestige of the Republic of the Philippines or its people orwith dangerous tendency to encourage the commission ofviolence, or of a wrong" as determined by the Board,"applying contemporary Filipino cultural values as


6/30

CONSTI 2CH.12FREEDOM OF RELIGION 6standard." As stated, the intention of the Board to subjectthe INC's television program to "previewing andcensorship is prompted by the fact that its religiousprogram makes mention of beliefs and practices of otherreligion." On the face of the law itself, there canconceivably be no basis for censorship of said program bythe Board as much as the alleged reason cited by theBoard does not appear to he within the contemplation ofthe standards of censorship set by law. (Emphasis

supplied).

Fourth. In x-rating the TV program of the petitioner, therespondents failed to apply the clear and present dangerrule. In American Bible Society v. City of Manila,

22 this

Court held: "The constitutional guaranty of free exerciseand enjoyment of religious profession and worship carrieswith it the right to disseminate religious information. Anyrestraint of such right can be justified like other restraintson freedom of expression on the ground that there is aclear and present danger of any substantive evil which theState has the right to prevent." In Victoriano vs. Elizalde

Rope Workers Union,

23

we further ruled that ". . . it is onlywhere it is unavoidably necessary to prevent animmediate and grave danger to the security and welfareof the community that infringement of religious freedommay be justified, and only to the smallest extentnecessary to avoid the danger."

The records show that the decision of the respondentBoard, affirmed by the respondent appellate court, iscompletely bereft of findings of facts to justify theconclusion that the subject video tapes constitute

impermissible attacks against another religion. There isno showing whatsoever of the type of harm the tapes will

bring about especially the gravity and imminence of thethreatened harm. Prior restraint on speech, includingreligious speech, cannot be justified by hypothetical fearsbut only by the showing of a substantive and imminentevil which has taken the life of a reality already on ground.

It is suggested that we re-examine the application of clearand present danger rule to the case at bar. In the UnitedStates, it is true that the clear and present danger test hasundergone permutations. It was Mr. Justice Holmes whoformulated the test in Schenck v. US,

24as follows: ". . .

the question in every case is whether the words used areused in such circumstances and are of such a nature as

to create a clear and present danger that they will bringabout the substantive evils that Congress has a right toprevent." Admittedly, the test was originally designed todetermine the latitude which should be given to speechthat espouses anti-government action. Bannered byJustices Holmes and Brandeis, the test attained its fullflowering in the decade of the forties, when its umbrellawas used to protect speech other than subversivespeech.

25 Thus, for instance, the test was applied to

annul a total ban on labor picketing.26

The use of the testtook a downswing in the 1950's when the US SupremeCourt decided Dennis v. United States involvingcommunist conspiracy.

27 In Dennis, the components of

the test were altered as the High Court adopted JudgeLearned Hand's formulation that ". . . in each case [courts]must ask whether the gravity of the 'evil,' discounted by itsimprobability, justifies such invasion of free speech as isnecessary to avoid the danger." The imminencerequirement of the test was thus diminished and to that

extent, the protection of the rule was weakened. In 1969,however, the strength of the test was reinstated inBrandenburg v. Ohio,

28when the High Court restored in

the test the imminence requirement, and even added anintent requirement which according to a notedcommentator ensured that only speech directed at incitinglawlessness could be punished.

29Presently in the United

States, the clear and present danger test is not appliedtoprotect low value speeches such as obscene speech,

commercial speech and defamation. Be that as it may, thetest is still applied to four types of speech: speech that

advocates dangerous ideas, speech that provokes ahostile audience reaction, out of court contempt andrelease of information that endangers a fair trial.

30Hence,

even following the drift of American jurisprudence, there isreason to apply the clear and present danger test to thecase at bar which concerns speech that attacks otherreligions and could readily provoke hostile audiencereaction. It cannot be doubted that religious truths disturband disturb tenribly.

It is also opined that it is inappropriate to apply the clearand present danger test to the case at bar because theissue involves the content of speech and not the time,place or manner of speech. Allegedly, unless the speechis first allowed, its impact cannot be measured, and thecausal connection between the speech and the evilapprehended cannot be established. The contentionoverlooks the fact that the case at bar involves videotapesthat are pre-taped and hence, their speech content isknown and not an X quantity. Given the specific content ofthe speech, it is not unreasonable to assume that therespondent Board, with its expertise, can determinewhether its sulphur will bring about the substantive evil

feared by the law.

Finally, it is also opined by Mr. Justice Kapunan that ". . .the determination of the question as to whether or notsuch vilification, exaggeration or fabrication falls within orlies outside the boundaries of protected speech orexpression is a judicial function which cannot bearrogated by an administrative body such as a Board ofCensors." He submits that a "system of prior restraint mayonly be validly administered by judges and not left to

administrative agencies. "The same submission is madeby Mr. Justice Mendoza.

This thoughtful thesis is an attempt to transplant anotherAmerican rule in our jurisdiction. Its seedbed was laiddown by Mr. Justice Brennan in his concurring opinion inthe 1962 case of Manual Enterprise v. Day

31 By 1965,

the US Supreme Court in Freedman v. Maryland 32

wasready to hold that "the teaching of cases is that, becauseonly a judicial determination in an adversary proceeding

ensures the necessary sensitivity to freedom ofexpression only a procedure requiring a judicialdetermination suffices to impose a valid final restraint."

33

While the thesis has a lot to commend itself, we are notready to hold that it is unconstitutional for Congress togrant an administrative body quasi-judicial power topreview and classify TV programs and enforce itsdecision subject to review by our courts. As far back as1921, we upheld this set-up in Sotto vs. Ruiz,

34viz.:


7/30

CONSTI 2CH.12FREEDOM OF RELIGION 7The use of the mails by private persons is in the nature ofa privilege which can be regulated in order to avoid itsabuse. Persons posses no absolute right to put into themail anything they please, regardless of its character.

On the other hand, the exclusion of newspaper and otherpublications from the mails, in the exercise of executivepower, is extremely delicate in nature and can only be

justified where the statute is unequivocably applicable tothe supposed objectionable publication. In excluding anypublication for the mails, the object should be not tointerfere with the freedom of the press or with any otherfundamental right of the people. This is the more true withreference to articles supposedly libelous than to otherparticulars of the law, since whether an article is or is notlibelous, is fundamentally a legal question. In order forthere to be due process of law, the action of the Directorof Posts must be subject to revision by the courts in casehe had abused his discretion or exceeded his authority.(Ex parte Jackson [1878], 96 U.S., 727;

Public Cleaning House vs. Coyne [1903], 194 U.S., 497;Post Publishing Co. vs.Murray [1916]. 23 - Fed., 773)

As has been said, the performance of the duty ofdetermining whether a publication contains printed matterof a libelous character rests with the Director of Posts andinvolves the exercise of his judgment and discretion.Every intendment of the law is in favor of the correctnessof his action. The rule is (and we go only to those casescoming from the United States Supreme Court andpertaining to the United States Postmaster-General), thatthe courts will not interfere with the decision of theDirector of Posts unless clearly of opinion that it was

wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S.,106; Smith vs. Hitchcock [1912], 226 U.S., 63; MassesPub. Co. vs. Patten [1917], 246 Fed., 24. But see Davidvs. Brown [1900], 103 Fed., 909, announcing a somewhatdifferent doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are stilldebating the proposition whether or not courts alone arecompetent to decide whether speech is constitutionallyprotected.

35 The issue involves highly arguable policy

considerations and can be better addressed by ourlegislators.

IN VIEW WHEREOF, the Decision of the respondentCourt of Appeals dated March 24, 1995 is affirmed insofaras it sustained the jurisdiction of the respondent MTRCBto review petitioner's TV program entitled "Ang Iglesia niCristo," and is reversed and set aside insofar as itsustained the action of the respondent MTRCB x-ratingpetitioner's TV Program Series Nos. 115, 119, and 121.No costs.

SO ORDERED.

Regalado, Davide, Jr., Romero and Francisco, JJ.,concur.

Narvasa, C.J., concurs in the result.

Separate Opinions

PANGANIBAN, J., concurring:

I think the basic issues in this case are:

A. What is the statutory extent and the constitutionallimitation of the powers of the Movies and Television

Review and Classification Board (MTRCB)? Morespecifically, does the MTRCB have the power to prohibit/censor television shows?

B. In banning the television showing of the Iglesia niCristo videotape series, did the respondent Boardexercise its powers correctly and properly?

The first question deals with the general legal conceptsand principles underlying the functions and prerogativesof the MTRCB while the second calls for a juridicalevaluation of the specific act of the Board in classifying as"X" (or not for public viewing) specific pre-taped or cannedprograms, identified as Series 115, 119, 121 and 128, forthe reason that they allegedly constituted an "attackagainst another religion." The first involves doctrine; thesecond, application.

A.EXTENT AND LIMIT OF MTRCB'S POWERSThe statutory powers of the MTRCB are set forth in Sec. 3of P.D. 1986.1In implementing P.D. 1986. the MTRCB issued its ownRules and Regulations. At issue in this case is Section 4

2

of such Rules.

On the other hand, these statutory powers and internallygenerated regulations are limited by the Bill of Rights. Art.III of the 1987 Constitution, particularly the rights to freespeech and religion.

Mr. Justice Mendoza connects the above constitutionalrights with the present controversy by saying that"expression . . . by means of television broadcast isincluded in the free speech and free press guarantee ofthe Constitution" and by Mr. Justice Kapunan by writing

that this "case uniquely interphases questions of religiousexpression and censorship laws in the context of theconstitution's guarantees of freedom of religion and ofspeech and expression."

Here before us therefore is a classic constitutional lawcase wherein the inherent power of the state to safeguardthe peace, well-being and general welfare of the peoplecollide and clash with the constitutional rights ofindividuals and religious institutions to evangelize, preach,promote, teach, and even proselytize.

Religious Freedom -- A Cherished Right

FIRST, I agree with the ponencia that "(f)reedom ofreligion has been accorded a preferred status by theframers of our fundamental laws, past and present."Religious freedom is absolute when it is confined withinthe realm of thought to a private, personal relationship


8/30

CONSTI 2CH.12FREEDOM OF RELIGION 8between a man's conscience and his God, but it is subjectto regulation when religious belief is transformed intoexternal acts that affect or afflict others. The mereinvocation of religious freedom will not stalemate theState and ipso facto render it incompetent in preservingthe rights of others and in protecting the general welfare.

MTRCB's Power to Review and to Censor is Valid

SECOND, I believe that as an agency of the State createdto promote the general welfare, the MTRCB under P.D.1986 has the basic initiatory authority and power to -

"approve or disapprove,

delete objectionable portion from

and/or prohibit

the importation, exportation, production, copying,

distribution, sale, lease, exhibition and/or televisionbroadcast" of pre-taped or canned (as contra-distinguished from "live") video-audio/film/televisionprograms and publicity materials. I regret I cannot goalong with Mr. Justice Mendoza's avante gardethesis thatSection 3-c of P.D. 1986, from where the above-quotedwords were taken, is "upon its face and as applied,unconstitutional." I note the extensive materials,particularly from American cases, buttressing his cogentstand, but, after reflection, prayer and discernment. I amthoroughly convinced that the situation in our country,particularly the totality of our cultural and religious milieuis far different from that in America.

Petitioner INC contends that the MTRCB's authorityextends only to non-religious video materials but not toreligious programs, particularly those of INC, which itclaims are neither "immoral" nor "indecent". This positionpresents more problems than solutions. For who willdetermine whether a given canned material is religious ornot, and therefore whether it can be publicly exhibited ornot without its passing through the Board? I would preferthat the State, which is constitutionally mandated to beneutral, continue to exercise the power to make suchdetermination, rather than leave it up to the producer,maker or exhibitor of such material, who/which, because

of vested interests would, in the normal course, beunderstandably biased in his/its own favor. I feel lessdiscomfort with the idea of maintaining the censors' quasi-

judicial authority to review such film materials, subject toappeal to the proper courts by aggrieved parties, thanwith the prospect and consequences of doing away withsuch power altogether. I agree with Mr. Justice Vitug infinding "it more prudent to have a deferment of anexhibition that may be perceived (by the Board) to becontrary to decency, morality, good custom or the lawuntil, at least, the courts are given an opportunity to passupon the matter . . ." A contrary ruling would mostregrettably remove meaningful and necessary safeguards

against a veritable floodtide of prurient, violence-proneand values-eroding television shows and programs.

In Gonzales vs. Kalaw Katigbak 4

and EasternBroadcasting Corp. (DYRE) vs. Dans, Jr.,

5 this Court

early on acknowledged the uniquely pervasive presence

of broadcast and electronic media in the lives ofeveryone, and the easy accessibility of television andradio to just about anyone, especially children. Everyoneis susceptible to their influence, even "the indifferent orunwilling who happen to be within reach of a blaring radioor television set."

6 And these audiences have less

opportunity to cogitate, analyze and reject the utterances,compared to readers of printed material.

7 It is precisely

because the State as parens patriae is "called upon to

manifest an attitude of caring for the welfare of the young" 8that I vote for the retention of the State's power of review

and prohibition via the MTRCB. High-minded idealism inthe staunch defense of the much-vaunted freedomscannot but be admired. Yet, no matter how devoutly wemay wish it, not all the people share the same mindsetand views nor, needless to say, the same viewpoint, i.e.,the ivory tower window. Hence, we must prudentlyanticipate that abuses against the public weal are likely tobe committed where absolute permissiveness is the norm.Would that, with the total absence of censorship orreview, there occur a significant increase in religious,spiritual or morally uplifting prime-time programming! Butrealistically and pragmatically speaking, we see mostlythe prospect of more explicit sex-oriented advertising,unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even theNet is not free of pornographic slime is no excuse to letdown all reasonable barriers against broadcast mediaofferings of muck, moral depravity and mayhem. Anddefinitely, there is no good and sensible reason for theState to abdicate its vital role as parens patriae, in theguise of copying American constitutional precedents,which I respectfully submit, are inapplicable in our factualcontext and time.

MTRCB Must Use Constitutional Standard

THIRD. In exercising its prerogatives, the MTRCB cannotact absolutely or whimsically. It must actprudently. And itcan do so ONLY if it exercizes its powers of review andprohibition according to a standard and/or a limit.

I believe that the phrase "with a dangerous tendency" inSec. 3-c of P.D. 1986 should be struck down as anunconstitutional standard. This is martial law vintage andshould be replaced with the more libertarian "clear andpresent danger rule" which is eloquently esplained by JJ.

Kapunan, Puno and Mendoza (and which explanation Ishall not repeat here).

Having said that, may I respectfully point out however thatthere is an even more appropriate standard in thePhilippine context proffered by the law itself, and that is"contemporary Philippine cultural values." This standardunder the law, should be used in determining whether afilm or video program is "(a) immoral, (b) indecent, (c)contrary to law and/or good custom, and (d) injurious tothe prestige of the Republic of the Philippines or itspeople." On the other hand, when the question is whetherthe material being reviewed "encourages the commissionof violence or of a wrong or crime" per the enumerationcontained in Sec. 3-c, the "clear and present danger"principle should be applied as the standard in place of the"dangerous tendency" rule.


9/30

CONSTI 2CH.12FREEDOM OF RELIGION 9Just a word edgewise about cultural values. Our culturalideals and core values of galang, pagbabahala,pananagutan, balikatan, malasakit, asal, halaga, diwa,damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa,awa, tiwala, maka-Diyos, maka-tao, maka-buhay and soforth, define us as a people, as Filipinos. We are who andwhat we are because of these values and ideals. Theydelimit the areas of individual and social behavior andconduct deemed acceptable or tolerable, and ultimately

they determine the way we as individuals uniquelyconduct our relationships and express ourselves.

According to Mr. Justice Kapunan, applying contemporaryFilipino values to religious thought and expression willpermit an "overarching" into a constitutionally protectedarea, and provides the MTRCB with a veiled excuse forclamping down against unorthodox religious thought andexpression. But such fear is highly speculative and totallyunsupported by empirical evidence. I would like to addthat where a mode of religious expression runs counter tosuch core values, serious questions have to be raisedabout the ultimate redeeming worth of such expression.

An example is in order. Not too long ago, the so-called"Children of God" blew into town, and, under the guise ofproselytizing, practised "flirty-fishing" (free sex). I wonderhow many of us will simply sit on our hands if these"Children" were to telecast their religious programs forOUR children to watch, or conduct seminars over theairwaves on the hows of free sex . . . Another example:satanic cults involve blood sacrifices . . . In brief, I am inagreement with theponencia that the practice of religioncannot be totally abandoned to the market place andgoverned by the policy of laissez faire.

Validity of MTRCB's Internal Rule

FOURTH. Anent the validity of Sec. 4 of the Board'sRules and Regulation authorizing MTRCB to prohibit theshowing of materials "which clearly constitute an attackagainst any race, creed or religion . . .", I agree with Mr.Justice Vitug that the phrase "contrary to law" in Sec. 3-c"should be read together with other existing laws such as,for instance, the provisions of the Revised Penal Code,particularly Article 201, which prohibit the exhibition ofshows that 'offend another race or religion.'" Indeed,where it can be shown that there is a clear and presentdanger that a religious program could agitate or spark areligious strife of such extent and magnitude as to be

injurious to the general welfare, the Board may "X-rate" itor delete such portions as may reasonably be necessary.The debilitating armed conflicts in Bosnia, NorthernIreland and in some Middle East countries due toexacerbated religious antagonisms should be enoughlesson for all of us. Religious wars can be more ravagingand damaging than ordinary crimes. If it is legal and infact praiseworthy to prevent the commission of, say, thefelony of murder in the name of public welfare why shouldthe prevention of a crime punishable by Art. 201 of thePenal Code be any less legal and less praiseworthy.

I note, in this connection, the caveat raised by the

ponencia that the MTRCB Rule bans shows which"attack" a religion, whereas Art. 201 merely penalize;those who exhibit programs which "offend" such religion.Subject to changing the word "attack" with the moreaccurate "offend". I believe Section 4 of the Rules canstand.

In sum, I respectfully submit (1) that P.D. 1986 isconstitutional, subject to the substitution (or interpretation)of the words "dangerous tendency" with the phrase (or asmeaning) "clear and present danger" in Sec. 3-c: and (2)that Sec. 4 of the Board's Rules would be likewise valid,providcd the words "constitute an attack" are changedwith "offend"

B.WAS THE BANNING OF THE IGLESIA PROGRAMSPROPER?

We now come to the immediate question: Did therespondent Board correctly apply Section 3 of P.D. 1986in prohibiting the public telecasting of the Iglesia program.In short, did the INC series "offend" a religion? Juridicallystated, did the respondent MTRCB use "contemporaryFilipino cultural values" in determining that said seriesoffended another religion such as to constitute a clear andpresent danger of a religions strife which is injurious topublic welfare? [Note: I advisedly used both the "values"and "clear and present" standards in framing the question

because the INC program was apparently "x-rated" forbeing both "contrary to law" and violative of Art. 201, a"crime".]

Unfortunately, we cannot answer this question directlybecause the tape in question was never submitted to theCourt for viewing. Neither was there a detailed descriptionof its objectionable contents in the assailed Decision ofthe Court of Appeals or Regional Trial Court. Nor is thereextant a detailed justification prepared by respondentBoard on why it banned the program - other than its bareconclusion that the material constituted an attack againstthe Catholic and Protestant religions.

In no wise can the "remarks" in the voting slips presentedbefore the trial court be considered sufficient justificationfor banning the showing of anymaterial.

In the face of such inadequacy of evidence and basis, Isee no way that this Court could authorize a suppressionof a species of the freedom of speech on the say-so ofanyone - not even of the MRTCB. Paraphrasing People v.Fernando,

9 the disputable presumption (which is of

statutory origin) that official duties have been regularlyperformed must yield to the constitutionally enshrined

freedoms of expression and of religion. If courts arerequired to state the factual and legal bases of theirconclusions and judicial dispositions, with more reasonmust quasi-judicial officers such as censors, especiallywhen they curtail a fundamental right which is "entitled tothe highest priority and amplest protection."

FOR THIS REASON AND THIS REASON ALONE, i.e.,that the respondent Board failed to justify its conclusionthru the use of the proper standards that the tapes inquestion offended another religion, I vote to GRANT thepetition insofar as it prays for the showing of saidprograms. However, I vote to DENY the petition insofar as

allowing the INC to show its pretaped programs withoutfirst submitting them forreview by the MTRCB.


10/30

CONSTI 2CH.12FREEDOM OF RELIGION 10PADILLA, J., concurring and dissenting:

I concur with the majority opinion insofar as it removes theban against the showing of petitioner's TV ProgramSeries Nos. 115, 119 and 121. However, I disagree withthat part of the majority opinion which upholds the powerof respondent Board to subject to prior restraintpetitioner's religious television programs.

It should by now be undisputably recognized and firmlyrooted in this country that there can be no prior restraintson the exercise of free speech expression or religionunless such exercise poses a clear and present danger ofa substantive evil which the State has the right and eventhe duty to prevent. The ban against such prior restraintswill result, as it has resulted in the past, in occasionalabuses of free speech and expression but it isimmeasurably preferable to experience such occasionalabuses of speech and expression than to arm agovernmental administrative agency with the authority tocensor speech and expression in accordance with

legislativev standards which albeit apparently laudable intheir nature, can very well be bent or stretched by suchagency to convenient latitudes as to frustrate andeviscerate the precious freedoms of speech andexpression.

Besides, any person who may feel aggrieved by theexercise of free speech, expression and religion, isafforded, under our system, the remedy of redress in thecourts of law, justice and equity.

In short, it is far better for the individual to live in a climateof free speech and free expression, devoid of priorrestraints, even at the risk of occasional excesses of suchfreedoms than to exist in an ambiance of censorshipwhich is always a step closer to autocracy anddictatorship.

MENDOZA, J., concurring:

I concur in the decision to allow the showing of certainvideo tapes of petitioner's program, "Ang Iglesia NiCristo," and for this purpose to reverse the contrary ruling

of the Court of Appeals. I am constrained to file thisseparate opinion, however, because, while the majorityopinion invokes general principles of free speech andreligion to which I subscribe, it regrettably fails to applythese principles to the law (P.D. No. 1986 and itsimplementing rules) under which the Board has acted.

My position will be spelled out presently but, in brief, it isthis: Censorship may be allowed only in anarrow class ofcases involving pornography, excessive violence, anddanger to national security. Even in these cases, onlycourts can prohibit the showing of a film or the broadcastof a program. In all other cases, the only remedy againstspeech which creates a clear and present danger topublic interests is through subsequent punishment.Considering the potentiality for harm which motionpictures and TV programs may have especially on theyoung, all materials may validly be required to besubmitted for review before they may be shown or

broadcast. However, the final determination of thecharacter of the materials cannot be left to anadministrative agency. That judicial review ofadministrative action is available does not obviate theconstitutional objection to censorship. For these reasons,I would hold 3(b) of P.D. No. 1986, which gives to theBoard limited time for review, to be valid, while finding3(c), under which the Board acted in this case incensoring petitioner's materials, to be, on its face and as

applied, unconstitutional.

I. "At the very least, free speech and free press may beidentified with the liberty to discuss publicly and truthfullyany matter of public interest without censorship orpunishment. There is to be . . . no previous restraint onthe communication of views or subsequent liabilitywhether in libel suits, prosecution for sedition, or action fordamages, or contempt proceedings, unless there be aclear and present danger of substantive evil thatCongress has a right to prevent."

1 "Because of the

preferred character of the constitutional rights of freedom

of speech and expression, a weighty presumption ofinvalidity vitiates measures of prior restraint upon theexercise of such freedoms."

2

Authoritative interpretations of the free speech clauseconsider as invalid two types of prior restraints, namely,those which are imposed prior to the dissemination of anymatter and those imposed prior to an adequatedetermination that the expression is not constitutionallyprotected. As the Wisconsin Supreme Court put thematter, "[A] prohibited "prior restraint" is not limited to thesuppression of a thing before it is released to the public.Rather, an invalid prior restraint is an infringement upon

the constitutional right to disseminate matters that areordinarily protected by the first amendment without therefirst being a judicial determination that the material doesnot qualify for first amendment protection."

3

Our own cases furnish illustrations of these types of priorrestraints. InAyer Productions Pty. Ltd. v. Capulong,

4we

held that an injunction stopping the production of adocumentary film was an invalid prior restraint on freedomof speech and of expression. In Mutuc v. COMELEC,

5we

struck down, also as an invalid prior restraint, aCOMELEC rule prohibiting the use in political campaignsof taped jingles blared through loudspeakers which were

mounted on mobile units. "[T]he constitutional guaranteeis not to be emasculated by confining it to a speakerhaving his say, but not perpetuating what is uttered byhim through tape or other mechanical contrivances."

6

On the other hand, the fact that the material may haveseen print or been taped, as in the case of the TV seriesin question, cannot justify restriction on its circulation inthe absence of a judicial determination that the materialdoes not constitute protected expression. In Sotto v. Ruiz,we denied finality to the authority of the Director of Poststo exclude newspapers and other publications from themails "since whether an article is or is not libelous, isfundamentally a legal question. In order for there to bedue process of law, the action of the Director of Postsmust be subject to revision by the courts in case he hasabused his discretion or exceeded authority."

8


11/30

CONSTI 2CH.12FREEDOM OF RELIGION 11II. P.D. No . 1986, 3(b) requires motion pictures,television programs and publicity materials to besubmitted to the Board for review, while 7 makes itunlawful for any person or entity to exhibit or cause to beexhibited in any moviehouse, theater or public place or bytelevision any motion picture, television program orpublicity material unless it has been approved by theBoard. Anyone who violates the prohibition is liable toprosecution and, in case of conviction, to punishment by

imprisonment ranging from 3 months and 1 day to 1 year,plus a fine of not less than P50,000.00 but not more thanP100,000.00. In addition, the moviehouse, theater ortelevision station violating the provision faces a revocationof its license.

9

In Burstyn v. Wilson, 10

it was held that expression bymeans of motion pictures -- and, it may be added, bymeans of television broadcasts - is included in the freespeech and free press guarantee of the Constitution. Thisruling is now part our constitutional law, which hasassimilated into the constitutional guarantee not only

motion pictures but also radio and television showsbecause of the importance of movie, radio and televisionboth as a vehicle of communication and as a medium ofexpression.

11

Does 3(b) impermissibly impose a prior restraintbecause of its requirement that films and TV programsmust be submitted to the Board for review before they canbe shown or broadcast? In my view it does not. TheBurstyncase, in declaring motion pictures to be protectedunder the free expression clause, was careful to add: "Itdoes not follow that the Constitution requires absolutefreedom to exhibit every motion picture of every kind at all

times and all places . . . Nor does it follow that motionpictures are necessarily subject to the precise rulesgoverning any other particular method of expression.Each method tends to present its own peculiar problems."

12With reference to television, this Court is on record that

"a less liberal approach calls for observance. This is sobecause unlike motion pictures where patrons have topay their way, television reaches every home where thereis a [TV] set. Children then will likely be among the avidviewers of programs therein shown. . . . [T]he State as parens patriae is called upon to manifest an attitude ofcaring for the welfare of the young."

13

While newspapers may not be required to submitmanuscripts for review as a condition for their publication,except during wartime, such a requirement is justifiedwhen applied to motion pictures or television programs(other than newsreels and commentaries) because ofunique considerations involved in their operation. "First,broadcast media have established a uniquely pervasivepresence in the livesof all citizens. Material presentedover the airwaves confronts the citizen, not only in public,but in the privacy of his home. Second, broadcasting isuniquely accessible to children. Bookstores and motionpicture theaters may be prohibited from making certainmaterial available to children, but the same selectivity

cannot be done in radio or television, where the listener orviewer is constantly tuning in and out."

14The State may

thus constitutionally require the advance submission of allfilms and TV programs as a means of enabling iteffectively to bar the showing of unprotected films and TVprograms.

15

For these reasons, I hold 3(b) to be a valid exercise ofthe State's power to protect legitimate public interests.The purpose of this restraint - temporary in character -- isto allow the Board time to screen materials and to seek aninjunction from the courts against those which it believesto be harmful.

III. I reach a different conclusion, however, with respect to

3(c). This provision authorizes the Board to prohibit,among other things, the exhibition or broadcast of motionpictures, television programs and publicity materialswhich, in its opinion, are "immoral, indecent, contrary tolaw and/or good customs, injurious to the prestige of theRepublic of the Philippines or its people, or [which have] adangerous tendency to encourage the commission ofviolence or of a wrong or crime," such as the following:


ii) Those which tend to undermine the faith andconfidence of the people in their government and/or theduly constituted authorities;


iv) Those which serve no other purpose but to satisfy themarket for violence or pornography;


vi) Those which are libelous or defamatory to the goodname and reputation of any person, whether living ordead; and

vii) Those which may constitute contempt of court or ofany quasi-judicial tribunal, or pertain to matters which aresub judicein nature.

Under this authority, the Board can determine what canbe shown or broadcast and what cannot. It is not true, asthe Board claims, that under P.D. No. 1986 its power islimited to the classification of motion pictures and TVprograms. The power to classify includes the power tocensor. The Board can x-rate films and TV programs andthus ban their public exhibition or broadcast. And once itdeclares that a motion picture or television program is, forexample, indecent or contrary to law, as in the case of theINC program in question, its declaration becomes the law.Unless the producer or exhibitor is willing to go to court,shouldering not only the burden of showing that his movieor television program is constitutionally protected but alsothe cost of litigation, the ban stays.

16This is censorship in

its baldest form. This is contrary to the fundamental tenetof our law that until and unless speech is found by the

courts to be unprotected its expression must be allowed.

In an effort to save this provision from constitutionalattack, it is alleged that the TV program in question wasdisallowed pursuant to the rules of the Board whichprohibit the showing of motion pictures or TV programs


12/30

CONSTI 2CH.12FREEDOM OF RELIGION 12containing "malicious attack[s] against any race, creed orreligion." It is contended that this rule impermissiblybroadens the prohibition in 3(c), because this ground("malicious attack[s] against any race, creed or religion")is not among those provided therein.

However, 3(c) gives the Board authority to stop theshowing of motion pictures, television programs and

publicity materials which are "contrary to law," and Art.201(2) (b) (3) of the Revised Penal Code makes it a crimefor anyone to exhibit "shows which offend any race orreligion." It is true that Art. 201 (2) (b) (3) refers tosubsequent punishment, whereas we are dealing herewith prior restraint. However, by authorizing thecensorship of materials which in the opinion of the Boardare "contrary to law," 3(c) makes what is only a groundfor subsequent punishment also a ground for priorrestraint on expression. It is 3(c) of P.D. No. 1986, andnot only the rules implementing it, which isunconstitutional.

17

While I think the Board may be granted the power topreview materials, it is only for the purpose of enablingthe Board to decide whether to seek their prohibition bythe court in the interest of safeguarding morality, goodorder and public safety, considering the pervasiveinfluence of broadcast media compared to that of the printmedia. But concern with possible deleterious effects ofmovies and television shows cannot and should not beallowed to overshadow the equally important concern forfreedom of expression and blind us to the danger ofleaving the ultimate determination of what expression isprotected and what is not to a board of censors. Theprotection of the youth should be in the first place the

concern of parents, schools and other institutions. I do notthink that society is so morally impoverished that we haveto draw on a group of censors for ultimate moral lessonand leading.

If we have to call on the assistance of any agency at all, itmust be the courts.

18 There are many reasons why a

system of prior restraint (in those cases where it mayvalidly be imposed) may only be administered by judges.First is that the censor's bias is to censor. Second is that"only a determination in an adversary proceeding ensuresthe necessary sensitivity to freedom of expression."

19As

has been observed, "Central to the first amendment due

process is the notion that a judicial rather than anadministrative determination of the character of thespeech is necessary. . . . [C]ourts alone are competent todecide whether speech is constitutionally protected."

20

Third, the members of the Board do not have the securityof tenure and of fiscal autonomy necessary to secure theirindependence.

Indeed, I cannot understand why, after ruling that thevaluation of property in eminent domain is essentially a

judicial function which cannot be vested in administrativeagencies,

21 this Court should be willing to leave the

valuation of that priceless commodity - expression,whether by means of motion picture or television - toadministrative agencies with only occasional review bythe courts. The trend may be toward greater delegation of

judicial authority to administrative agencies in mattersrequiring technical knowledge and as a means of relievingcourts of cases which such agencies can very well attend

to.22

There is no justification, however, for suchdelegation in the area of our essential freedoms,particularly freedom of expression, where "only a judicialdetermination in an adversary proceeding [can] ensurethe necessary sensitivity to freedom of expression."

23

We have witnessed such distinct possibility in the past toneed any more lesson in the future to make us realize the

danger of leaving freedom of expression and religion - theessential freedom of the mind - in the care of anadministrative agency.

To the extent therefore that P.D. No. 1986, 3(c) vests inthe Board the final authority to determine whetherexpression by motion picture or television isconstitutionally protected, I find it unconstitutional.

IV. The majority limit themselves to a determination of thecorrectness of the Board's finding that the video tapes inquestion contain attacks on the Catholic religion, I find itdifficult to pass upon this question because the contents

of the tapes are not in the record of this case. 24The trialcourt ruled that the tapes contain no attack against anyreligion but only a discussion of the doctrines which theIglesia Ni Cristo believes embody "superior and selfevident truth." On the other hand, the Court of Appeals, inreversing the trial court, found that the tapes "offend byverbal abuse other religions" and are for that reason"indecent and contrary to good customs" within themeaning of P.D. No, 1986, 3(c). Neither court, however,had any evidence to support its conclusions, because thiscase was submitted by the parties solely on the basis ofmemoranda. What the majority of this Court call facts (pp.16-17) are simply the opinions of members of the Board

that the video tapes contain attacks on the Catholicreligion.

There are no facts on which to base judgment on thisquestion. Even if there are, the clear and present dangertest is inapplicable. To be sure, in Gonzales v. KalawKatigbak this Court said:

[W]here the movies, theatrical productions, radio scripts,television programs, and other such media of expressionare concerned -- included as they are in freedom ofexpression - censorship, especially so if an entire

production is banned, is allowable only under the clearestproof of a clear and present danger of a substantive evilto public safety, public morals, public health or any otherlegitimate public interest.

25

The clear and present danger test has been devised foruse in criminal prosecutions for violations of lawspunishing certain types of utterances.

26While the test has

been applied to the regulation of the use of streetsand parks27-- surely a form of prior restraint - its use insuch context can be justified on the ground that thecontent of the speech is not the issue. But when theregulation concerns not the time, place or manner of

speech but its content (i.e., it is content-based) the clearand present danger test simply cannot be applied. This isbecause a determination whether an utterance hascreated a clear and present danger to public interestsrequires a factual record.


13/30

CONSTI 2CH.12FREEDOM OF RELIGION 13The test itself states that the question in every case is"whether the words used are used in such circumstancesand are of such a nature as to create a clear and presentdanger that they will bring about the substantive evil thatCongress has a right to prevent."

28However it may have

been reformulated in later cases, the test essentiallyrequires that the causal connection between the speechand the evil apprehended be evident.

29But how can this

be shown unless the speech is first allowed? It is not

enough that the tapes have been made and only theirbroadcast banned. What about the audience reaction tothe tapes? Even if we know what the tapes in this casecontain, we cannot determine whether their publicbroadcast would create a clear and present danger topublic interests. The censorship board, trying to determinewhether to issue a permit, must necessarily speculate onimpact which the words will have since the context inwhich they will be uttered - the audience, the occasion,and the place - is totally lacking in the record. It is thenforced to apply a lesser standard of proof in decidingwhether to impose a restraint on speech.

The majority claim that there is no need for a factualrecord in order to find that the Board in this caseexceeded its powers in disallowing the TV series inquestion. They argue that "acts of prior restraint arehobbled by the presumption of invalidity and should begreeted with furrowed brews. It is the burden of therespondent Board to overthrow this presumption. If it failsto discharge this heavy burden, its act of censorship willbe struck down. . . . In the case at bar, respondent boarddid nothing to rebut the presumption." (p. 17)

That, however, is precisely the problem with the

censorship law. It in effect places on the producer orexhibitor the burden of going to court and of showing thathis film or program is constitutionally protected. Toparaphrase Sotto v. Ruiz, which the majority cite asauthority for sustaining the validity of 3(c), "Everyintendment of the law is in favor of the correctness of [theagency's] action."

30The Board would have this burden of

justification if, as I believe it should, is made to go to courtinstead and justify the banning of a film or TV program.That is why 3(c) should be invalidated. One cannotdefend the validity of the law and at the same timecontend that in any court proceeding for the review of theBoard's decision the burden of justifying the ban should

be on the Board.

The teaching of Gonzales v. Kalaw Katigbak simplycomes down to this: that the standard for judging thevalidity of prior restraint on political expression is stricterthan that for adjudging restraints on materials alleged tobe obscene, but not that the test of clear and presentdanger is applicable in determining whether or not apermit may be granted.

In Gonzales v. Kalaw Katigbak 31

this Court echoedJustice Douglas's plea that "every writer, actor, orproducer, no matter what medium of expression he mayuse, should be freed from the censor." For indeed the fullflowering of local artistic talents and the development ofthe national intelligence can take place only in a climate offree expression. A film producer, faced with the prospectof losing on his investment as a result of the banning ofhis movie production, may well find himself compelled to

submit to the wishes of the Board or practice self-censorship. The expression of unpopular opinions,whether religious, political or otherwise is imperilled undersuch a system.

We have long ago done away with controls on the printmedia, it is time we did the same with the control onbroadcast media, which for so long operated underrestraints,

32 leaving the punishment for violations of laws

to be dealt with by subsequent prosecution.

For the foregoing reasons, I vote to declare 3(2) of P.D.No. 1986 unconstitutional and to reverse the decision ofthe Court of Appeals, except in so far as it sustains thegrant of power to the Board to preview materials forshowing or broadcast, consistent with my view that 3(b)is valid.

MELO, J., concurring and dissenting:

The enjoyment of the freedom of religion is alwayscoupled with the freedom of expression. For theprofession of faith inevitably carries with it as a necessaryappendage, the prerogative of propagation. Theconstitutional guaranty of free exercise and enjoyment ofreligious profession and worship thus denotes the right todisseminate religious information (American Bible Societyvs. City of Manila 101 Phil. 386 [1957]). Any priorrestriction upon a religious expression would be arestriction on the right of religion. We recognize the roleand the deep influence that religion plays in our

community. No less than the fundamental law of the landacknowledges the elevating influence of religion byimploring the aid of almighty God to build a just andhumane society. Any restriction that is to be placed uponthis right must be applied with greatest caution.

Judicial notice must be taken of the fact that the Iglesia niCristo as an established religious organization has beenwell with us for almost a century, with several millions offollowing quite a number of imposing and elegantlyconstructed cathedrals and hundreds of chapels spread inmany parts of the country, injecting profound influence notonly in the social and political aspect of the community but

upon its moral values as well. Respect must be afforded awell-established church, especially on matters concerningmorality and decency lest no concept of morality couldever be accepted with deference. Such preeminence inthe community deserves no less than the confidentexpectation that it will act in accordance with its avowedmission of promoting religious guidance andenlightenment. Its religious programs must be accordedthe presumption that the same will instill moral values thatwould be beneficial to its adherents and followers, andperhaps to the community in general. The contrary mustnot be presumed. Its television programs, therefore,should not be equated with ordinary movies and television

shows which MTRCB is bound by the law to monitor forpossible abuse. One must recognize the power of State toprotect its citizenry from the danger of immorality andindecency motivated by the selfish desire of mediaentrepreneurs to accumulate more wealth, or of bogusreligious groups, for that matter, to mislead and beguile


14/30

CONSTI 2CH.12FREEDOM OF RELIGION 14the unlettered and uninformed. But considering all thesecircumstances, I see no cogent reason for the applicationof such power to the present case.

Freedom of religion and expression is the rule and itsrestriction, the exception. Any prior restriction on theexercise of the freedom to profess religious faith and thepropagation thereof will unduly diminish that religion's

authority to spread what it believes to be the sacred truth.The State can exercise no power to restrict such right untilthe exercise thereof traverses the point that will endangerthe order of civil society. Thus we have ruled in the caseof Ebralinag vs. The Division Superintendent of Schoolsof Cebu(219 SCRA 270 [1993]):

The sole justification for a given restraint or limitation onthe exercise of religious freedom is the existence of agrave and present danger of a character both grave andimminent of a serious evil to public safety, public morals,public health or any other legitimate public interest thatthe state has the right and duty to prevent.

Correspondingly, the MTRCB has no authority to use asstandard, the dangerous tendency rule, which we havelong abandoned and for which reason, the dangeroustendency standard under Subparagraph C, Section 3 ofPresidential Decree No. 1986 has no place in our statutebooks.

I therefore, vote to grant the petition.

VITUG, J., dissenting:

I agree with those who support the view that religiousfreedom occupies an exalted position in our hierarchy ofrights and that the freedom to disseminate religiousinformation is a constitutionally-sanctioned prerogativethat allows any legitimate religious denomination a freechoice of media in the propagation of its credo. Like anyother right, however, the exercise of religious belief is notwithout inherent and statutory limitations.

The Board disapproved the exhibition of a series oftelevision programs of petitioner on the ground that they

tend to "offend and constitute an attack against otherreligions." An opinion has been expressed that the non-inclusion in Section 3 of P.D. 1986 of an "attack againstany religion," as a standard for classification, and so thedeletion of the phrase "offensive to other religions" foundin the old censorship law (Executive Order No. 876),should be clear enough to manifest a legislative intent "todo away with the standard." A reading of Section 3 of P.D.1986 shows that the Board is empowered to "screen,review and examine all . . . television programs" and to"approve or disprove, delete objectionable portion fromand/or prohibit the . . . television broadcast of . . .television programs . . . which, in the judgment of theBOARD (so) applying contemporary Filipino culturalvalues as standard, are objectionable for being immoral,indecent, contrary to law and/or good customs . . . ." Ibelieve that the phrase "contrary to law" should be readtogether with other existing laws such as, for instance, theprovisions of the Revised Penal Code, particularly Article

201, which prohibits the exhibition of shows that "offendanother race or religion." I see in this provision a goodand sound standard. Recent events indicate recurrentviolent incidents between and among communities withdiverse religious beliefs and dogma. The danger is pastmere apprehension; it has become a virtual reality andnow prevalent in some parts of the world.

In order not to infringe constitutional principles, anyrestriction by the Board must, of course, be for legitimateand valid reasons. I certainly do not think that priorcensorship should altogether be rejected just becausesanctions can later be imposed. Regulating the exerciseof a right is not necessarily an anathema to it; in fact, itcan safeguard and secure that right.

When I particularly ponder on the magnitude of the powerof a television set, I find it more prudent to have adeferment of an exhibition that may be perceived to becontrary to decency, morality, good customs or the lawuntil, at least, the courts are given an opportunity to pass

upon the matter than rely merely on the availability ofretribution for actual injury sustained. A delay is not toohigh a price to pay for a possible damage to society thatmay well tum out to be incalculable and lasting.

In this instance, I vote for the dismissal of the petition.

KAPUNAN, J., concurring and dissenting:

While I concur in the result of the majority's decision

reversing that of the Court of Appeals insofar as it setaside the action of respondent MTRCB x-ratingpetitioner's TV Program Series Nos. 115, 119 and 121,with due respect, I cannot agree with its opinion thatrespondent Board of Review for Motion pictures andTelevision (now MTRCB) has the power to reviewpetitioner's TV program "Ang Iglesia ni Cristo." Thereligious TV program enjoys the Constitution's guaranteeof freedom of religion,

1and of speech and expression.,2

and cannot be subject to prior restraint by the Board byvirtue of its powers and functions under Section 3 of P.D.1986 which provides as follows:

Sec. 3. Powers and Functions. -- The BOARD shall havethe following functions, powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures asherein defined, television programs, including publicitymaterials such as advertisements, trailers and stills,whether such motion pictures and publicity materials befor theatrical or non-theatrical distribution, for televisionbroadcast or for general viewing, imported or produced inthe Philippines, and in the latter case, whether they be for

local viewing or for export.

c) To approve or disapprove, delete objectionable portionfrom and/or prohibit the importation, exportation,production, copying, distribution, sale, lease, exhibitionand/or television broadcast of the motion pictures,


15/30

CONSTI 2CH.12FREEDOM OF RELIGION 15television programs and publicity materials subject of thepreceding paragraph, which, in the judgment of theBOARD applying contemporary Filipino cultural values asstandard, are objectionable for being immoral, indecent,contrary to law and/or good customs, Injurious to theprestige of the Republic of the Philippines or its people, orwith a dangerous tendency to encourage the commissionof violence or of a wrong or crime, such as but not limitedto:


ii) Those which tend to undermine the faith andconfidence of the people, their government and/or dulyconstituted authorities;


iv) Those which serve no other purpose but to satisfy themarket for violence and pornography;


vi) Those which are libelous or defamatory to the goodname and reputation of any person, whether living ordead; and,

vii) Those which may constitute contempt of court or ofany quasi-judicial tribunal, or pertain to matters which are

subjudice in nature.

Under the aforequoted provisions, the MTRCB, whilenominally a classification board, is granted the power notonly to classify, but also to approve or disapprove/prohibitexhibition of film or television broadcasts of motionpictures and TV programs.

The freedom to disseminate religious information is a rightprotected by the free exercise clause of the Constitution.It encompasses a wide range of ideas and takes manyforms. In the process of enlightening the adherents orconvincing non-believers of the truth of its beliefs, areligious sect or denomination is allowed the free choiceof utilizing various media, including pulpit or podium, print,television film, and the electronic mail.

The broad latitude of freedom afforded by the freeexercise clause is an historic outgrowth of our country'stwin colonial experiences: our forefathers' aversionagainst the Spanish colonial government's interferencewith religious belief and practice and the transplantation of

American Constitutional thinking into the mainstream ofour political life, which brought with it the ideas ofProtestant dissent and humanistic rationalism dominant in

the debates of the American Constitutional Convention.These two poles conjoined to place the individualconscience beyond the coercive power of government.Involving as it does the relationship of man to his Creator,respect for the inviolability of conscience lay at the core ofthe free exercise clauses in our Constitutions from 1935

to 1987.3

It is, therefore, settled that religious freedom is afundamental right entitled to the highest priority andamplest protection among human rights. Because of itsexalted position in our hierarchy of civil rights, the realm ofreligious belief is generally insulated from state action,and state interference with such belief is allowed only in

extreme cases.

Free exercise encompasses all shades of expression ofreligious belief. It includes the right to preach, proselyteand to perform other similar functions.

4 As oftentimes

these aspects of the free exercise clause fall within areasaffected by government regulation, the importance ofreligious freedom is such that the state must make specialprovisions to relieve religious liberty from restrictionsimposed by generally legitimate government regulations

5

Commenting on religious freedom and other freedoms ofconscience, this Court held in Reyes v. Bagatsing

6that:

[O]n the judiciary -- even more so than on the otherdepartments -- rests the grave and delicate responsibilityof assuring respect for and deference to such preferredrights. No verbal formula, no sanctifying phrase can, ofcourse dispense with what has been felicitously termed byJustice Holmes "as the sovereign prerogative of

judgment. Nonetheless, the presumption must be toincline the weight of the scales of justice on the side ofsuch rights.

7

Even before film and television achieved the power andinfluence it has gained in the last few decades, the U.S.Supreme Court, in the case of Burtsyn v. Wilson,

8

conceded that movies were a significant medium for thedissemination of ideas, affecting "public attitudes andbehavior in a variety of ways, ranging from the directespousal of a political or social doctrine to the subtleshaping of thought which characterizes artisticexpression."

9The U.S. Supreme Court emphasized that

the significance of motion pictures as an organ of publicopinion is not diluted by the fact that films are "designedto entertain as we

Documents

Mtrcb Case