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152. Pita V CA G.R. No.

80806 October 5, 1989

In 1983, pursuant to the Anti-Smut Campaign of Mayor Ramon Bagatsng, elements of the Special
Anti-Narcotics Group, and the Manila Police, seized and confiscated from dealers along Manila sidewalks,
magazines believed to be obscene. These were later burned. One of the publications was Pinoy Playboy
published by Leo Pita.
He filed an injunction case against the mayor of manila to enjoin him from confiscating more copies of his
magazine and claimed that this was a violation of freedom of speech. The court ordered him to show cause.
He then filed an Urgent Motion for issuance of a temporary restraining order against indiscriminate seizure.
Defendant Mayor Bagatsing admitted the confiscation and burning of obscence reading materials
but admitted that these were surrendered by the stall owners and the establishments were not raided. The
other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16,
1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy
Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not".
On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for
a writ of preliminary injunction, and dismissing the case for lack of merit
The CA also dismissed the appeal due to the argument that freedom of the press is not without restraint.

In the SC, the petitioner claimed that:

1. The CA erred in holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial
court could dismiss the case on its merits without any hearing thereon when what was submitted to it for
resolution was merely the application of petitioner for the writ of preliminary injunction.

Issue: Was the seizure constitutional?

Held: No.

Test for obscenity: "whether the tendency of the matter charged as obscene, is to deprave or corrupt
those whose minds are open to such immoral influences and into whose hands a publication or other article
charged as being obscene may fall. Also, "whether a picture is obscene or indecent must depend upon the
circumstances of the case, and that ultimately, the question is to be decided by the "judgment of the
aggregate sense of the community reached by it." (Kottinger)
When does a publication have a corrupting tendency, or when can it be said to be offensive to human
The issue is a complicated one, in which the fine lines have neither been drawn nor divided.
Katigbak- "Whether to the average person, applying contemporary standards, the dominant theme of
the material taken as a whole appeals to prurient interest."
Kalaw-Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather than isolated passages, which were central to Kottinger
(although both cases are agreed that "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a
judicial question and as a consequence, to temper the widediscretion Kottinger had given unto law
The latest say on American jurisprudence was Miller v. California, which expressly abandoned
Massachusettes, and established "basic guidelines," to wit: "(a) whether 'the average person, applying
contemporary standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b)
whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by
the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.”
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to
the reluctance of the courts to recognize the constitutional dimension of the problem. Apparently, the courts
have assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we
averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories
of what is acceptable to society.
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one
insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences,
and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades ago,
is not necessarily repulsive to the present generation.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier,
it is the divergent perceptions of men and women that have probably compounded the problem rather than
resolved it.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not
its protection. In free expression cases, this Court has consistently been on the side of the exercise of the
right, barring a "clear and present danger" that would warrant State interference and action. But the burden
to show this lies with the authorities.
"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear
and present danger."
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate the existence
of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State action to stop the
The Court is not convinced that the private respondents have shown the required proof to justify a ban and
to warrant confiscation of the literature for which mandatory injunction had been sought below. First of all,
they were not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2)
authorizing them to carry out a search and seizure, by way of a search warrant.
Has petitioner been found guilty for publishing obscene works under Presidential Decrees Nos. 960
and 969? This not answered, one can conclude that the fact that the former respondent Mayor's act was
sanctioned by "police power" is no license to seize property in disregard of due process. The PD’s don’t
give the authorities the permission to execute high-handed acts.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become
unreasonable and subject to challenge.
There is of course provision for warrantless searches under the Rules of Court but as the provision itself
suggests, the search must have been an incident to a lawful arrest and it must be on account fo a crime
The Court rejected the argument that "[t]here is no constitutional nor legal provision which would
free the accused of all criminal responsibility because there had been no warrant, and there is no "accused"
here to speak of, who ought to be "punished".
Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant because, in his opinion, "violation of penal laws" has been
committed, is to make the respondent Mayor judge, jury, and executioner rolled into one.