Immoral doctrines, obscene publications and exhibitions and indecent shows, Revised Penal Code

1. Concept

Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows – The penalty of prisión mayor or a fine ranging from Twenty thousand pesos (₱20,000) to Two hundred thousand pesos (₱200,000), or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. a. The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

b. Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public orders, morals, and good customs, established policies, lawful orders, decrees and edicts; and

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (Act No. 3815, Revised Penal Code)

2. Mode of commission

Elements of the offense:

1) The materials, publication, picture or literature are obscene; and

2) The offender sold, exhibited, published or gave away such materials. (Fernando v. Court of Appeals, G.R. No. 159751, 06 December 2006)

Necessarily, that the confiscated materials are obscene must be proved. (Ibid.)

a. 1^st Mode

Elements of the offense:

1) Doctrines openly contrary to public morals are being publicly expounded or proclaimed; and

2) The offender does such acts.

b. 2^nd Mode

Elements of the offense:

1) There is obscene literature; and

2) The offenders are either:

(a) the authors of obscene literature, published with their knowledge in any form;

(b) the editors publishing such literature; and

c. 3^rd Mode

Elements of the offense:

1) The offenders are those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which:

(a) glorify criminals or condone crimes;

(b) serve no other purpose but to satisfy the market for violence, lust or pornography;

(d) tend to abet traffic in and use of prohibited drugs; and

(e) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts.

d. 4^th Mode

Elements of the offense:

1) There are films, prints, engravings, sculpture or literature which are offensive to morals; and

1) The offenders are those who sell, give away or exhibit these.

3. Obscenity

“Obscenity” – refers to something which is offensive to chastity, decency or delicacy. (Fernando v. Court of Appeals, G.R. No. 159751, 06 December 2006)

a. Unprotected speech

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation. (Fernando v. Court of Appeals, G.R. No. 159751, 06 December 2006)

One such regulation is Article 201 of the Revised Penal Code. (Ibid.)

b. Test

The test to determine the existence of obscenity is, 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. (Ibid.)

Another test… is “that which shocks the ordinary and common sense of men as an indecency.” (Ibid.)

But, [People v. Kottinger] hastened to say that 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. (Ibid.)