Among
the various opinions filed in Iglesia ni Cristo vs. Court of Appeals, G.R. No. 119673, July 26, 1996, the separate opinion of Justice Vicente V. Mendoza seems to me to be the most plausible. Because of that, I am
posting a summary of his opinion apart from the rest of the opinions that I
previously posted jointly.
Essentially,
the Mendoza thesis says that “[c]ensorship may be allowed only in a
narrow class of cases involving pornography, excessive violence, and danger to
national security. Even in these cases, only courts can prohibit the showing of
a film or the broadcast of a program. In all other cases, the only remedy
against speech which creates a clear and present danger to public interests is
through subsequent punishment. Considering the potentiality for harm which
motion pictures and TV programs may have especially on the young, all materials
may validly be required to be submitted for review before they may be shown or
broadcast. However, the final determination of the character of the materials
cannot be left to an administrative agency. That judicial review of
administrative action is available does not obviate the constitutional
objection to censorship.”
Although Justice Mendoza
concurred with the ponencia in
reversing the decision of the CA and in ordering the lifting of the X-rating of
petitioners TV program, he nevertheless partially disagreed with
the ponencia’s holding that
the respondent Board’s power under Sec. 3(c) of P.D. No. 1986 to impose prior
restraint is valid. He would hold Sec. 3(b) of P.D. No. 1986, which gives to
the Board limited time for review, to be valid, but he would declare Sec. 3(c),
under which the Board acted in this case in censoring petitioner’s materials,
to be, on its face and as applied, unconstitutional. He expounded his view in
the following manner:
Does
[Sec.] 3(b) impermissibly impose a prior restraint because of its requirement
that films and TV programs must be submitted to the Board for review before
they can be shown or broadcast? In my view it does not. The Burstyn case,
in declaring motion pictures to be protected under the free expression clause,
was careful to add: “It does not follow that the Constitution requires absolute
freedom to exhibit every motion picture of every kind at all times and all
places . . . Nor does it follow that motion pictures are necessarily subject to
the precise rules governing any other particular method of expression. Each
method tends to present its own peculiar problems.” With reference to
television, this Court is on record that “a less liberal approach calls for
observance. This is so because unlike motion pictures where patrons have to pay
their way, television reaches every home where there is a [TV] set. Children
then will likely be among the avid viewers of programs therein shown . . .
[T]he State as parens patriae is
called upon to manifest an attitude of caring for the welfare of the young.”
While
newspapers may not be required to submit manuscripts for review as a condition
for their publication, except during wartime, such a requirement is justified
when applied to motion pictures or television programs (other than newsreels
and commentaries) because of unique considerations involved in their operation.
“First, broadcast media have established a uniquely pervasive presence in the
lives of all citizens. Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home. Second,
broadcasting is uniquely accessible to children. Bookstores and motion picture
theaters may be prohibited from making certain material available to children,
but the same selectivity cannot be done in radio or television, where the
listener or viewer is constantly tuning in and out.” The State may thus
constitutionally require the advance submission of all films and TV programs as
a means of enabling it effectively to bar the showing of unprotected films and
TV programs.
For
these reasons, I hold [Sec.] 3(b) to be a valid exercise of the State’s power
to protect legitimate public interests. The purpose of this restraint –
temporary in character – is to allow the Board time to screen materials and to
seek an injunction from the courts against those which it believes to be
harmful.
I
reach a different conclusion, however, with respect to [Sec.] 3(c). This
provision authorizes the Board to prohibit, among other things, the exhibition
or broadcast of motion pictures, television programs and publicity materials
which, in its opinion, are “immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its
people, or [which have] a dangerous tendency to encourage the commission of
violence or of a wrong or crime,” such as the following:
xxx
xxx
xxx
While
I think the Board may be granted the power to preview materials, it is only for
the purpose of enabling the Board to decide whether to seek their prohibition
by the court in the interest of safeguarding morality, good order and public
safety, considering the pervasive influence of broadcast media compared to that
of the print media. But concern with possible deleterious effects of movies and
television shows cannot and should not be allowed to overshadow the equally
important concern for freedom of expression and blind us to the danger of
leaving the ultimate determination of what expression is protected and what is
not to a board of censors. The protection of the youth should be in the first
place the concern of parents, schools and other institutions. I do not think
that society is so morally impoverished that we have to draw on a group of
censors for ultimate moral lesson and leading.
On the issue of the correctness of respondent Board’s finding
that the INC video tapes in question contained attacks on the Catholic religion
and thus merited an X-rating, Justice
Mendoza disagreed
with the ponencia that respondent Board committed grave abuse of
discretion in X-rating the subject TV programs. He found it
difficult to pass upon this question because the contents of the tapes are not
in the record of the case and thus there are no
facts on which to base judgment. Further, even if there are such facts to base
a ruling on the second issue, the Justice
Mendoza opined that the clear and present danger test is inapplicable in
this case:
There
are no facts on which to base judgment on this question. Even if there are, the
clear and present danger test is inapplicable. To be sure, in Gonzales
v. Kalaw Katigbak this Court said:
[W]here
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.
The
clear and present danger test has been devised for use in criminal prosecutions
for violations of laws punishing certain types of utterances. While the test
has been applied to the regulation of the use of streets and parks – surely a form of
prior restraint – its use in such context can be justified on the ground that
the content of the speech is not the issue. But when the regulation concerns
not the time, place or manner of speech but its content (i.e., it
is content-based) the clear and present danger test simply cannot be applied.
This is because a determination whether an utterance has created a clear and
present danger to public interests requires a factual record.
The
test itself states that 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 evil that
Congress has a right to prevent.” However it may have been reformulated in
later cases, the test essentially requires that the causal connection between
the speech and the evil apprehended be evident. But how can this be shown
unless the speech is first allowed? It is not enough that the tapes have been
made and only their broadcast banned. What about the audience reaction to the
tapes? Even if we know what the tapes in this case contain, we cannot determine
whether their public broadcast would create a clear and present danger to
public interests. The censorship board, trying to determine whether to issue a
permit, must necessarily speculate on impact which the words will have since
the context in which they will be uttered - the audience, the occasion, and the
place - is totally lacking in the record. It is then forced to apply a lesser
standard of proof in deciding whether to impose a restraint on speech.
The
majority claim that there is no need for a factual record in order to find that
the Board in this case exceeded its powers in disallowing the TV series in
question. They argue that “acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted with furrowed brews. It is the
burden of the respondent Board to overthrow this presumption. If it fails to
discharge this heavy burden, its act of censorship will be struck down . . . In
the case at bar, respondent Board did nothing to rebut the presumption.
That,
however, is precisely the problem with the censorship law. It in effect places
on the producer or exhibitor the burden of going to court and of showing that
his film or program is constitutionally protected. To paraphrase Sotto
v. Ruiz, which the majority cite as authority for sustaining
the validity of §3(c), “Every intendment of the law is in favor of the
correctness of [the agency’s] action.” The Board would have this burden of
justification if, as I believe it should, is made to go to court instead and
justify the banning of a film or TV program. That is why [Sec.] 3(c) should be
invalidated. One cannot defend the validity of the law and at the same time
contend that in any court proceeding for the review of the Board’s decision the
burden of justifying the ban should be on the Board.
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