By By Atty. Romulo P. Atencia
OBSCENITY
posted 5-Mar-2016  ·  
4,812 views  ·   0 comments  ·  

I was then a Liberal Arts student at the University of Santo Tomas in the early 60’s when I read D. H. Lawrence’s “Lady Chatterley’s Lover”, a story of the relationship between a working class man and an upper class woman in traditionally snooty England. It was first published in 1928 but heavily censored. An unexpurgated edition of the novel could not be published openly in the United Kingdom at that time because of its explicit descriptions of sex, and its use of then-unprintable words. But, as noted by a critic who reviewed the work, the omitted passages are those to which the author “attached supreme psychological importance – importance so great, that he was willing to face obloquy and misunderstanding and censorship because of them". Indeed, when the full unexpurgated edition was finally published in Britain in 1960, the publisher was promptly sued for obscenity. 

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So, what is smut? In the 1923 case of People vs. Kottinger, our Supreme Court was confronted with the question of whether or not pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are obscene or indecent. The case was a criminal prosecution arising out of a raid conducted by a detective on the premises known as Camera Supply Co. at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently were used as evidence against J. J. Kottinger, the manager of the company. The court laid down the test, in determining the existence of obscenity, as follows: "whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.". Another test, so Kottinger further declares, "is that which shocks the ordinary and common sense of men as an indecency." Kottinger hastened to say, however, that "(w)hether 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." But how do you determine the “aggregate sense” of the community? Is that supposed to be determined by members of the Supreme Court who are mostly old men and women?  Or of teenagers, young adults, middle-aged?

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About three decades later, the Highest Court promulgated People v. Go Pin, which was  even hazier:  “x x x If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures involved in the Go Pin case were used not exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. The persons who went to see those pictures and paid entrance fees for the privilege of doing so were mostly those desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement. They were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes.

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In a subsequent case, the Supreme Court introduced to Philippine jurisprudence the "redeeming" element that should accompany the work, to save it from a valid prosecution. It declared in People v. Padan y Alova that the court had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which were condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. “But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. x x x”.

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Nonetheless, Padan y Alova, like Go Pin, raised more questions than answers. For one thing, if the exhibition was attended by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes," could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration," in it, would it cease to be a case of obscenity? In a much later decision, Gonzalez v. Kalaw Katigbak, the Supreme Court, following trends in the United States, adopted the test: "Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient 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 wide discretion Kottinger had given unto law enforcers.

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Undoubtedly, "immoral" lore or literature comes within the ambit of free expression. On the other hand, there is no challenge on the right of the State, in the legitimate exercise of police power,  to suppress smut -- provided it is smut. It is the Supreme Court which decides. And the Supreme Court has consistently been on the side of the exercise of the right of free expression, barring a "clear and present danger" that would warrant government interference and action. It is aware 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. It is the divergent perceptions of men and women that have probably compounded the problem rather than resolved it. 

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