G.R. No. 119673 - Separate Opinions




G.R. No. 119673, July 26, 1996, ♦ Decision, Puno, [J] ♦ Separate Opinion, Padilla, Melo, Kapunan, Mendoza, Panganiban & Vitug [JJ] G.R. No. 119673 July 26, 1996 IGLESIA NI CRISTO, (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents. Separate Opinion PANGANIBAN, J., concurring: I think the basic issues in this case are: A. What is the statutory extent and the constitutional limitation of the powers of the Movies and Television Review and Classification Board (MTRCB)? More specifically, does the MTRCB have the power to prohibit/ censor television shows? B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent Board exercise its powers correctly and properly? The first question deals with the general legal concepts and principles underlying the functions and prerogatives of the MTRCB while the second calls for a juridical evaluation of the specific act of the Board in classifying as "X" (or not for public viewing) specific pre-taped or canned programs, identified as Series 115, 119, 121 and 128, for the reason that they allegedly constituted an "attack against another religion." The first involves doctrine; the second, application. A. EXTENT AND LIMIT OF MTRCB'S POWERS The statutory powers of the MTRCB are set forth in Sec. 3 of P.D. 1986.1 In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is Section 42 of such Rules. On the other hand, these statutory powers and internally generated regulations are limited by the Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to free speech and religion. Mr. Justice Mendoza connects the above constitutional rights with the present controversy by saying that "expression . . . by means of television broadcast is included in the free speech and free press guarantee of the Constitution" and by Mr. Justice Kapunan by writing that this "case uniquely interphases questions of religious expression and censorship laws in the context of the constitution's guarantees of freedom of religion and of speech and expression." Here before us therefore is a classic constitutional law case wherein the inherent power of the state to safeguard the peace, well-being and general welfare of the people collide and clash with the constitutional rights of individuals 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 of religion has been accorded a preferred status by the framers of our fundamental laws, past and present." Religious freedom is absolute when it is confined within the realm of thought to a private, personal relationship between a man's conscience and his God, but it is subject to regulation when religious belief is transformed into external acts that affect or afflict others. The mere invocation of religious freedom will not stalemate the State and ipso facto render it incompetent in preserving the 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 created to 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 television broadcast" of pre-taped or canned (as contra-distinguished from "live") video-audio/film/television programs and publicity materials. I regret I cannot go along with Mr. Justice Mendoza's avante garde thesis that Section 3-c of P.D. 1986, from where the above-quoted words were taken, is "upon its face and as applied, unconstitutional." I note the extensive materials, particularly from American cases, buttressing his cogent stand, but, after reflection, prayer and discernment. I am thoroughly convinced that the situation in our country, particularly the totality of our cultural and religious milieu is far different from that in America. Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials but not to religious programs, particularly those of INC, which it claims are neither "immoral" nor "indecent". This position presents more problems than solutions. For who will determine whether a given canned material is religious or not, and therefore whether it can be publicly exhibited or not without its passing through the Board? I would prefer that the State, which is constitutionally mandated to be neutral, continue to exercise the power to make such determination, 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, be understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the censors' quasi-judicial authority to review such film materials, subject to appeal to the proper courts by aggrieved parties, than with the prospect and consequences of doing away with such power altogether. I agree with Mr. Justice Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be contrary to decency, morality, good custom or the law until, at least, the courts are given an opportunity to pass upon the matter . . ." A contrary ruling would most regrettably remove meaningful and necessary safeguards against a veritable floodtide of prurient, violence-prone and values-eroding television shows and programs. In Gonzales vs. Kalaw Katigbak4 and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,5 this Court early on acknowledged the uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the easy accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to their influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or 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"8 that I vote for the retention of the State's power of review and prohibition via the MTRCB. High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but be admired. Yet, no matter how devoutly we may wish it, not all the people share the same mindset and views nor, needless to say, the same viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that abuses against the public weal are likely to be committed where absolute permissiveness is the norm. Would that, with the total absence of censorship or review, there occur a significant increase in religious, spiritual or morally uplifting prime-time programming! But realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-oriented advertising, unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even the Net is not free of pornographic slime is no excuse to let down all reasonable barriers against broadcast media offerings of muck, moral depravity and mayhem. And definitely, there is no good and sensible reason for the State to abdicate its vital role as parens patriae, in the guise of copying American constitutional precedents, which I respectfully submit, are inapplicable in our factual context and time. MTRCB Must Use Constitutional Standard THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently. And it can do so ONLY if it exercizes its powers of review and prohibition according to a standard and/or a limit. I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck down as an unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian "clear and present danger rule" which is eloquently esplained by JJ. Kapunan, Puno and Mendoza (and which explanation I shall not repeat here). Having said that, may I respectfully point out however that there is an even more appropriate standard in the Philippine context proffered by the law itself, and that is "contemporary Philippine cultural values." This standard under the law, should be used in determining whether a film or video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of the Philippines or its people." On the other hand, when the question is whether the material being reviewed "encourages the commission of violence or of a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle should be applied as the standard in place of the "dangerous tendency" rule. Just a word edgewise about cultural values. Our cultural ideals 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 so forth, define us as a people, as Filipinos. We are who and what we are because of these values and ideals. They delimit the areas of individual and social behavior and conduct deemed acceptable or tolerable, and ultimately they determine the way we as individuals uniquely conduct our relationships and express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to religious thought and expression will permit an "overarching" into a constitutionally protected area, and provides the MTRCB with a veiled excuse for clamping down against unorthodox religious thought and expression. But such fear is highly speculative and totally unsupported by empirical evidence. I would like to add that where a mode of religious expression runs counter to such core values, serious questions have to be raised about 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 of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply sit on our hands if these "Children" were to telecast their religious programs for OUR children to watch, or conduct seminars over the airwaves on the hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . In brief, I am in agreement with the ponencia that the practice of religion cannot be totally abandoned to the market place and governed by the policy of laissez faire. Validity of MTRCB's Internal Rule FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to prohibit the showing of materials "which clearly constitute an attack against 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 of shows that 'offend another race or religion.'" Indeed, where it can be shown that there is a clear and present danger that a religious program could agitate or spark a religious strife of such extent and magnitude as to be injurious to the general welfare, the Board may "X-rate" it or delete such portions as may reasonably be necessary. The debilitating armed conflicts in Bosnia, Northern Ireland and in some Middle East countries due to exacerbated religious antagonisms should be enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of murder in the name of public welfare why should the prevention of a crime punishable by Art. 201 of the Penal 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 more accurate "offend". I believe Section 4 of the Rules can stand. In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or interpretation) of the words "dangerous tendency" with the phrase (or as meaning) "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 changed with "offend" B. WAS THE BANNING OF THE IGLESIA PROGRAMS PROPER? We now come to the immediate question: Did the respondent Board correctly apply Section 3 of P.D. 1986 in prohibiting the public telecasting of the Iglesia program. In short, did the INC series "offend" a religion? Juridically stated, did the respondent MTRCB use "contemporary Filipino cultural values" in determining that said series offended another religion such as to constitute a clear and present danger of a religions strife which is injurious to public 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" for being both "contrary to law" and violative of Art. 201, a "crime".] Unfortunately, we cannot answer this question directly because the tape in question was never submitted to the Court for viewing. Neither was there a detailed description of its objectionable contents in the assailed Decision of the Court of Appeals or Regional Trial Court. Nor is there extant a detailed justification prepared by respondent Board on why it banned the program - other than its bare conclusion that the material constituted an attack against the Catholic and Protestant religions. In no wise can the "remarks" in the voting slips presented before the trial court be considered sufficient justification for banning the showing of any material. In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a suppression of a species of the freedom of speech on the say-so of anyone - not even of the MRTCB. Paraphrasing People v. Fernando,9 the disputable presumption (which is of statutory origin) that official duties have been regularly performed must yield to the constitutionally enshrined freedoms of expression and of religion. If courts are required to state the factual and legal bases of their conclusions and judicial dispositions, with more reason must quasi-judicial officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest priority and amplest protection." FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its conclusion thru the use of the proper standards that the tapes in question offended another religion, I vote to GRANT the petition insofar as it prays for the showing of said programs. However, I vote to DENY the petition insofar as allowing the INC to show its pretaped programs without first submitting them forreview by the MTRCB. Footnotes 1 Sec. 3. Powers and Functions. - The BOARD shall have the following functions, powers and duties: x x x x x x x x x b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export. c) To approve or disprove, delete objectionable portion from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence 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 otherwise threaten the economic and/or political stability of the State; ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly constituted authorities; iii) Those which glorify criminals or condone crimes; iv) Those which serve no other purpose but to satisfy the market for violence and pornography; v) Those which tend to abet the traffic in and use of prohibited drugs; vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; and, vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are sub judice in nature. 2 Section 4, GOVERNING STANDARD. - a) The BOARD shall judge the motion pictures and television programs and publicity materials submitted to it for review, using as standard contemporary Filiping cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law and good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not limited to: x x x x x x x x x vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from individual members thereof; . . . 3 Sec. 4. No law shall be passed abridging the freedom of speech, of expression . . . Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. . . . 4 137 SCRA 717 (July 22, 1985). 5 137 SCRA 628 (July 19, 1985). 6 Eastern, supra, at p. 636. 7 Id. 8 Gonzales, supra, at p. 729. 9 SCRA 151, 159 (October 21, 1986). Separate Opinion PADILLA, J., concurring and dissenting: I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's TV Program Series Nos. 115, 119 and 121. However, I disagree with that part of the majority opinion which upholds the power of respondent Board to subject to prior restraint petitioner's religious television programs. It should by now be undisputably recognized and firmly rooted in this country that there can be no prior restraints on the exercise of free speech expression or religion unless such exercise poses a clear and present danger of a substantive evil which the State has the right and even the duty to prevent. The ban against such prior restraints will result, as it has resulted in the past, in occasional abuses of free speech and expression but it is immeasurably preferable to experience such occasional abuses of speech and expression than to arm a governmental administrative agency with the authority to censor speech and expression in accordance with legislativev standards which albeit apparently laudable in their nature, can very well be bent or stretched by such agency to convenient latitudes as to frustrate and eviscerate the precious freedoms of speech and expression. Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion, is afforded, under our system, the remedy of redress in the courts of law, justice and equity. In short, it is far better for the individual to live in a climate of free speech and free expression, devoid of prior restraints, even at the risk of occasional excesses of such freedoms than to exist in an ambiance of censorship which is always a step closer to autocracy and dictatorship. Separate Opinion MENDOZA, J., concurring: I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang Iglesia Ni Cristo," and for this purpose to reverse the contrary ruling of the Court of Appeals. I am constrained to file this separate opinion, however, because, while the majority opinion invokes general principles of free speech and religion to which I subscribe, it regrettably fails to apply these principles to the law (P.D. No. 1986 and its implementing rules) under which the Board has acted. My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in anarrow 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. For these reasons, I would hold §3(b) of P.D. No. 1986, which gives to the Board limited time for review, to be valid, while finding §3(c), under which the Board acted in this case in censoring petitioner's materials, to be, on its face and as applied, unconstitutional. I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. There is to be . . . no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings, unless there be a clear and present danger of substantive evil that Congress has a right to prevent."1 "Because of the preferred character of the constitutional rights of freedom of speech and expression, a weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."2 Authoritative interpretations of the free speech clause consider as invalid two types of prior restraints, namely, those which are imposed prior to the dissemination of any matter and those imposed prior to an adequate determination that the expression is not constitutionally protected. As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior restraint" is not limited to the suppression 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 are ordinarily protected by the first amendment without there first being a judicial determination that the material does not qualify for first amendment protection."3 Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions Pty. Ltd. v. Capulong,4 we held that an injunction stopping the production of a documentary film was an invalid prior restraint on freedom of speech and of expression. In Mutuc v. COMELEC,5 we struck down, also as an invalid prior restraint, a COMELEC rule prohibiting the use in political campaigns of taped jingles blared through loudspeakers which were mounted on mobile units. "[T]he constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not perpetuating what is uttered by him through tape or other mechanical contrivances."6 On the other hand, the fact that the material may have seen print or been taped, as in the case of the TV series in question, cannot justify restriction on its circulation in the absence of a judicial determination that the material does not constitute protected expression. In Sotto v. Ruiz, we denied finality to the authority of the Director of Posts to exclude newspapers and other publications from the mails "since whether an article is or is not libelous, is fundamentally a legal question. In order for there to be due process of law, the action of the Director of Posts must be subject to revision by the courts in case he has abused his discretion or exceeded authority."8 II. P.D. No . 1986, §3(b) requires motion pictures, television programs and publicity materials to be submitted to the Board for review, while §7 makes it unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theater or public place or by television any motion picture, television program or publicity material unless it has been approved by the Board. Anyone who violates the prohibition is liable to prosecution 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 than P100,000.00. In addition, the moviehouse, theater or television station violating the provision faces a revocation of its license.9 In Burstyn v. Wilson,10 it was held that expression by means of motion pictures -- and, it may be added, by means of television broadcasts - is included in the free speech and free press guarantee of the Constitution. This ruling is now part our constitutional law, which has assimilated into the constitutional guarantee not only motion pictures but also radio and television shows because of the importance of movie, radio and television both as a vehicle of communication and as a medium of expression.11 Does §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."12 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."13 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 livesof 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."14 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.15 For these reasons, I hold §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. 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 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: i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic and/or political stability of the State; ii) Those which tend to undermine the faith and confidence of the people in their government and/or the duly constituted authorities; iii) Those which glorify criminals or condone crimes; iv) Those which serve no other purpose but to satisfy the market for violence or pornography; v) Those which tend to abet the traffic in and use of prohibited drugs; vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; and vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are sub judice in nature. Under this authority, the Board can determine what can be shown or broadcast and what cannot. It is not true, as the Board claims, that under P.D. No. 1986 its power is limited to the classification of motion pictures and TV programs. The power to classify includes the power to censor. The Board can x-rate films and TV programs and thus ban their public exhibition or broadcast. And once it declares that a motion picture or television program is, for example, indecent or contrary to law, as in the case of the INC 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 movie or television program is constitutionally protected but also the cost of litigation, the ban stays.16 This is censorship in its baldest form. This is contrary to the fundamental tenet of 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 constitutional attack, it is alleged that the TV program in question was disallowed pursuant to the rules of the Board which prohibit the showing of motion pictures or TV programs containing "malicious attack[s] against any race, creed or religion." It is contended that this rule impermissibly broadens 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 the showing 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 crime for anyone to exhibit "shows which offend any race or religion." It is true that Art. 201 (2) (b) (3) refers to subsequent punishment, whereas we are dealing here with prior restraint. However, by authorizing the censorship of materials which in the opinion of the Board are "contrary to law," §3(c) makes what is only a ground for subsequent punishment also a ground for prior restraint on expression. It is §3(c) of P.D. No. 1986, and not only the rules implementing it, which is unconstitutional.17 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. If we have to call on the assistance of any agency at all, it must be the courts.18 There are many reasons why a system of prior restraint (in those cases where it may validly 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 ensures the necessary sensitivity to freedom of expression."19 As has been observed, "Central to the first amendment due process is the notion that a judicial rather than an administrative determination of the character of the speech is necessary. . . . [C]ourts alone are competent to decide whether speech is constitutionally protected."20 Third, the members of the Board do not have the security of tenure and of fiscal autonomy necessary to secure their independence. Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is essentially a judicial function which cannot be vested in administrative agencies,21 this Court should be willing to leave the valuation of that priceless commodity - expression, whether by means of motion picture or television - to administrative agencies with only occasional review by the courts. The trend may be toward greater delegation of judicial authority to administrative agencies in matters requiring technical knowledge and as a means of relieving courts of cases which such agencies can very well attend to. 22 There is no justification, however, for such delegation in the area of our essential freedoms, particularly freedom of expression, where "only a judicial determination in an adversary proceeding [can] ensure the necessary sensitivity to freedom of expression."23 We have witnessed such distinct possibility in the past to need any more lesson in the future to make us realize the danger of leaving freedom of expression and religion - the essential freedom of the mind - in the care of an administrative agency. To the extent therefore that P.D. No. 1986, §3(c) vests in the Board the final authority to determine whether expression by motion picture or television is constitutionally protected, I find it unconstitutional. IV. The majority limit themselves to a determination of the correctness of the Board's finding that the video tapes in question contain attacks on the Catholic religion, I find it difficult to pass upon this question because the contents of the tapes are not in the record of this case.24 The trial court ruled that the tapes contain no attack against any religion but only a discussion of the doctrines which the Iglesia Ni Cristo believes embody "superior and self evident truth." On the other hand, the Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other religions" and are for that reason "indecent and contrary to good customs" within the meaning of P.D. No, 1986, §3(c). Neither court, however, had any evidence to support its conclusions, because this case was submitted by the parties solely on the basis of memoranda. 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 Catholic religion. There are no facts on which to base judgment on this question. Even if there are, the clear and present danger test is inapplicable.ℒαwρhi৷ 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.25 The clear and present danger test has been devised for use in criminal prosecutions for violations of laws punishing certain types of utterances.26 While the test has been applied to the regulation of the use of streets and parks27 -- 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." 28 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.29 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." (p. 17) 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."30 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 §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. The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for judging the validity of prior restraint on political expression is stricter than that for adjudging restraints on materials alleged to be obscene, but not that the test of clear and present danger is applicable in determining whether or not a permit may be granted. In Gonzales v. Kalaw Katigbak31 this Court echoed Justice Douglas's plea that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor." For indeed the full flowering of local artistic talents and the development of the national intelligence can take place only in a climate of free expression. A film producer, faced with the prospect of losing on his investment as a result of the banning of his 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 under such a system. We have long ago done away with controls on the print media, it is time we did the same with the control on broadcast media, which for so long operated under restraints,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 of the Court of Appeals, except in so far as it sustains the grant of power to the Board to preview materials for showing or broadcast, consistent with my view that §3(b) is valid. Footnotes 1 Gonzales v. COMELEC, 27 SCRA 835, 856 (1969); accord, Reyes v. Bagatsing, 125 SCRA 553 (1983); Gonzales v. Kalaw Katigbak, 137 SCRA 717 (1985). 2 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988). 3 State v. I, a Woman - Part II, 53 Wis. 102, 191 N.W. 2d 897, 902-903 (1971); see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, 1041-42 (1988). 4 160 SCRA 861 (1988). 5 36 SCRA 228 (1970). 6 Id., at 234. 7 41 Phil. 468 (1921). 8 Id. at 470. 9 §11. 10 343 U.S. 495, 96 L.Ed. 1098 (1952). 11 See Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA at 869; Gonzales v. Kalaw Katigbak, 137 SCRA at 723; Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA 628, 635 (1985). 12 Burstyn v. Wilson, 343 U.S. at 502-503, 96 L. Ed. at 1106. 13 Gonzales v. Kalaw Katigbak, 137 SCRA at 729. 14 Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA at 635. 15 Freedman v. Maryland, 380 U.S. 51, 13 L.Ed. 2d 649 (1965). 16 PAUL A. FREUND, THE SUPREME COURT OF THE UNITED STATES, 66 (1961). 17 Thanks to Rule 4(VII) of the Board, "shows which offendany race or religion," as a ground for prosecution, is translated into "clearly . . malicious attack against a race, creed or religion," as a ground for censorship, thus limiting the Board's discretion in censoring films and TV programs. This does not of course make the grant of censorial powers to the Board any less invalid. There was a time when I thought that the problem was with overboard standards. I am now convinced that the problem is with censorship per se. 18 See Freedman v. Maryland, 380 U.S. 51, 13 L.Ed.2d 649 (1965); Teitel Film Corp. v. Cusak, 390 U.S. 139, 19 L.Ed.2d 966 (1968); Blount v. Rizzi, 400 U.S. 410, 428 L.Ed.2d 498 (1971). 19 Freedman v. Maryland, 380 U.S. at 58, 13 L.Ed.2d at 654. For a discussion of the "vices" of administrative censorship as opposed to judicial determination, see generally John Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 421-426 (1983). 20 Henry Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518, 520 (1970). 21 EPZA v. Dulay, 149 SCRA 305 (1987); Sumulong v. Guerrero, 154 SCRA 461 (1987). 22 E.g., AntipolO Realty v. NHA, 153 SCRA 399 (1987); Tropical Homes, Inc. v. NHA, 152 SCRA 540 (1987). 23 Freedman v. Maryland, 380 U.S. at 58, 13 L.Ed.2d at 654. 24 Compare the following: "Knowledge is essential to understanding; and understanding should precede judging," Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520, 68 L.Ed. 813, 829 (1924) (Brandeis, J., dissenting), which Professor Freund says was central to the thought of Justice Brandeis. ON UNDERSTANDING THE SUPREME COURT 50 (1949). 25 137 SCRA at 725. 26 See, e.g., Schenck v. United States, 249 U.S. 47, 63 L.Ed. 470 (1919); Primicias v. Fugoso, 80 Phil. 71 (1948); Cabansag v. Fernandez, 102 Phil. 152 (1957); Vera v. Arca, 28 SCRA 351 (1969). 27 E.g., Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v. Villegas, 31 SCRA 731 (1970); see also the Public Assembly Act of 1985 (B.P. Blg. 880), §6(a) of which makes it mandatory for mayors to grant permits for the use of parks and streets unless there is "clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health." 28 Schenck v. United States, 249 U.S. at 52, 63 L.Ed at 473-74. 29 ENRIQUE M. FERNANDO, CONSTITUTION OF THE PHILIPPINES 569 (1977). 30 41 Phil. at 470. 31 137 SCRA at 725, quoting Justice Douglas's concurring opinion in Superior Films v. Department of Education, 346 U.S. 587, 589, 98 L.Ed. 330, 331 (1954). 32 The first film censorship law, Act No. 3582 of the Philippine Legislature, was enacted on November 29, 1929. Separate Opinion MELO, J., concurring and dissenting: The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the profession of faith inevitably carries with it as a necessary appendage, the prerogative of propagation. The constitutional guaranty of free exercise and enjoyment of religious profession and worship thus denotes the right to disseminate religious information (American Bible Society vs. City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious expression would be a restriction on the right of religion. We recognize the role and the deep influence that religion plays in our community. No less than the fundamental law of the land acknowledges the elevating influence of religion by imploring the aid of almighty God to build a just and humane society. Any restriction that is to be placed upon this right must be applied with greatest caution. Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious organization has been well with us for almost a century, with several millions of following quite a number of imposing and elegantly constructed cathedrals and hundreds of chapels spread in many parts of the country, injecting profound influence not only in the social and political aspect of the community but upon its moral values as well. Respect must be afforded a well-established church, especially on matters concerning morality and decency lest no concept of morality could ever be accepted with deference. Such preeminence in the community deserves no less than the confident expectation that it will act in accordance with its avowed mission of promoting religious guidance and enlightenment. Its religious programs must be accorded the presumption that the same will instill moral values that would be beneficial to its adherents and followers, and perhaps to the community in general. The contrary must not 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 for possible abuse. One must recognize the power of State to protect its citizenry from the danger of immorality and indecency motivated by the selfish desire of media entrepreneurs to accumulate more wealth, or of bogus religious groups, for that matter, to mislead and beguile the unlettered and uninformed. But considering all these circumstances, I see no cogent reason for the application of such power to the present case. Freedom of religion and expression is the rule and its restriction, the exception. Any prior restriction on the exercise of the freedom to profess religious faith and the propagation 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 until the exercise thereof traverses the point that will endanger the order of civil society. Thus we have ruled in the case of Ebralinag vs. The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]): The sole justification for a given restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety, public morals, public health or any other legitimate public interest that the state has the right and duty to prevent. Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule, which we have long abandoned and for which reason, the dangerous tendency standard under Subparagraph C, Section 3 of Presidential Decree No. 1986 has no place in our statute books. I therefore, vote to grant the petition. Separate Opinion VITUG, J., dissenting: I agree with those who support the view that religious freedom occupies an exalted position in our hierarchy of rights and that the freedom to disseminate religious information is a constitutionally-sanctioned prerogative that allows any legitimate religious denomination a free choice of media in the propagation of its credo. Like any other right, however, the exercise of religious belief is not without inherent and statutory limitations. The Board disapproved the exhibition of a series of television programs of petitioner on the ground that they tend to "offend and constitute an attack against other religions." An opinion has been expressed that the non-inclusion in Section 3 of P.D. 1986 of an "attack against any religion," as a standard for classification, and so the deletion of the phrase "offensive to other religions" found in the old censorship law (Executive Order No. 876), should be clear enough to manifest a legislative intent "to do 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 from and/or prohibit the . . . television broadcast of . . . television programs . . . which, in the judgment of the BOARD (so) applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs . . . ." I believe that the phrase "contrary to law" should be read together with other existing laws such as, for instance, the provisions of the Revised Penal Code, particularly Article 201, which prohibits the exhibition of shows that "offend another race or religion." I see in this provision a good and sound standard. Recent events indicate recurrent violent incidents between and among communities with diverse religious beliefs and dogma. The danger is past mere apprehension; it has become a virtual reality and now prevalent in some parts of the world. In order not to infringe constitutional principles, any restriction by the Board must, of course, be for legitimate and valid reasons. I certainly do not think that prior censorship should altogether be rejected just because sanctions can later be imposed. Regulating the exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and secure that right. When I particularly ponder on the magnitude of the power of a television set, I find it more prudent to have a deferment of an exhibition that may be perceived to be contrary to decency, morality, good customs or the law until, at least, the courts are given an opportunity to pass upon the matter than rely merely on the availability of retribution for actual injury sustained. A delay is not too high a price to pay for a possible damage to society that may well tum out to be incalculable and lasting. In this instance, I vote for the dismissal of the petition.ℒαwρhi৷ Separate Opinion 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 set aside the action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119 and 121, with due respect, I cannot agree with its opinion that respondent Board of Review for Motion pictures and Television (now MTRCB) has the power to review petitioner's TV program "Ang Iglesia ni Cristo." The religious TV program enjoys the Constitution's guarantee of freedom of religion,1 and of speech and expression.,2 and cannot be subject to prior restraint by the Board by virtue of its powers and functions under Section 3 of P.D. 1986 which provides as follows: Sec. 3. Powers and Functions. -- The BOARD shall have the following functions, powers and duties: x x x x x x x x x b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export. c) To approve or disapprove, delete objectionable portion from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, Injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence 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 otherwise threaten the economic and/or political stability of the State; ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly constituted authorities; iii) Those which glorify criminals or condone crimes; iv) Those which serve no other purpose but to satisfy the market for violence and pornography; v) Those which tend to abet the traffic in and use of prohibited drugs; vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; and, vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are subjudice in nature. Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the power not only to classify, but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures and TV programs. The freedom to disseminate religious information is a right protected by the free exercise clause of the Constitution. It encompasses a wide range of ideas and takes many forms. In the process of enlightening the adherents or convincing non-believers of the truth of its beliefs, a religious sect or denomination is allowed the free choice of utilizing various media, including pulpit or podium, print, television film, and the electronic mail. The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our country's twin colonial experiences: our forefathers' aversion against the Spanish colonial government's interference with religious belief and practice and the transplantation of American Constitutional thinking into the mainstream of our political life, which brought with it the ideas of Protestant dissent and humanistic rationalism dominant in the debates of the American Constitutional Convention. These two poles conjoined to place the individual conscience 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 of the free exercise clauses in our Constitutions from 1935 to 1987.3 It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority and amplest protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm of religious 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 of religious belief. It includes the right to preach, proselyte and to perform other similar functions.4 As oftentimes these aspects of the free exercise clause fall within areas affected by government regulation, the importance of religious freedom is such that the state must make special provisions to relieve religious liberty from restrictions imposed by generally legitimate government regulations5 Commenting on religious freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing6 that: [O]n the judiciary -- even more so than on the other departments -- rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course dispense with what has been felicitously termed by Justice Holmes "as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights.7 Even before film and television achieved the power and influence 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 the dissemination of ideas, affecting "public attitudes and behavior in a variety of ways, ranging from the direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes artistic expression."9 The U.S. Supreme Court emphasized that the significance of motion pictures as an organ of public opinion is not diluted by the fact that films are "designed to entertain as well as to inform," 10 thus, recognizing that motion pictures fell within the sphere of constitutionally protected speech and expression. Responding to the question of censorship in the context of film as protected expression, the U.S. Supreme Court, in the case of Freedman v. Maryland 11 held that: The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there is an inherent danger that he may be less responsive than a court part of an independent branch of government -- to constitutionally protected interests in free expression.12 In American Bible Society v. City of Manila,13 this Court held that any restraint on the right to disseminate religious information "can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent."14 Affirming the use of this "clear and present danger" standard in cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee warned that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent."15 Religious freedom is not of course an absolute right. However, given its exalted position in our hierarchy of civil rights, the essence of all that has been said and written about the subject is that only those interests of the highest order and those not otherwise served can overbalance claims to free exercise of religion.16 In a highly sensitive constitutional area, only the gravest situation endangering paramount govemmental interests give occasion for permissible limitation. And even in such rare cases, government may justify an inroad into religious liberty only by showing that it is the least restrictive means of achieving the compelling state interest. A facially neutral regulation apparently evenhandedly applied to all religious sects and denominations would be constitutionally suspect when it imposes an undue burden on the exercise of religious freedom. "Rules are rules" is not by itself a sufficient justification for infringing religious liberty.17 It is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D. 1986 and its corresponding implementing rules and regulations), does not have the power to interfere with the exercise of religious expression in film or television by requiring the submission of the video tapes of petitioner's religious program before their public viewing, absent a showing of a compelling state interest that overrides the constitutional protection of the freedom of expression and worship. Even if government can demonstrate a compelling state interest, it would only burden such fundamental right like the free exercise of religion by the least intrusive means possible.18 There is no demonstration here of any sufficient state interest to justify the infringement. In any case, petitioner's religious programs, which in their very essence and characterization are the exercise of religious freedom, cannot possibly come under the category of the objectionable matters enumerated in Section 3(c) of P.D. 1986 or analogous thereto. It is not likely that propagation of religion which has been spoken of as "a profession of faith that binds and elevates man to his Creator"19 will involve pornography excessive violence or danger to national security. Significantly, the enumeration in Section 3(c) does not include the standard "attack against any religion" as among those considered objectionable and subject to censorship. Respondents justify this omission by stating that any form of expression "contrary to law" could be subject to regulation because the enumeration is in any case not exclusive, and that the phrase "contrary to law" should, in the Solicitor General's words in behalf of respondents, be construed "in relation to Article 201 of the Revised Penal Code which proscribes the exhibition of shows that "offend any race or religion."20 Respondents moreover argue that the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986 in any case explicitly furnish the standard left out in the enumeration when it provides: Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures and television programs and publicity materials submitted to it for review, using as standard contemporary Filipino cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law and good customs, injurious to the prestige of the Republic of the Philipines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not limited to: x x x x x x x x x vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from individual members thereof; . . . There are several reasons why I cannot agree with respondent Board's contention that it may add the standard "attack against any religion" among those enumerated by P.D. 1986. While the law's enumeration is concededly not exclusive, inclusion of other standards should be made in the strict context of the words "immoral, indecent, contrary to law and/or good customs." Specific standards following a general enumeration cannot go beyond the scope of the latter. In the first place, the word "indecent" in censorship law has a narrow meaning, confined to obscenity regulation.12 It cannot be conveniently employed as a catch-all term embracing all forms of expression considered noxious by the Board. On the other hand, "contrary to law," had particular significance in the old censorship laws because those laws explicitly included anything "offensive to other religions" among their enumerated standards. In the light of what the Solicitor General describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of "attack against any religion" among the enumerated standards was intentional and part of the evolving process of fashioning a system of strict classification of films and television programs as opposed to censorship. As this phrase was ubiquitous in the old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses the manifest intention of the law-making authority to do away with the standard. This view is supported by the Executive Branch itself, through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case came up before his office for review, that: [T]he question whether the BRMPT (now MTRCB) may preview and censor the subject television program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of P.D. 1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards for censorship, to wit: "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with dangerous tendency to encourage the commission of violence, or a wrong" as determined by the Board, "applying contemporary Filipino cultural values as standard". As stated, the intention of the Board to subject the INC's television program to "previewing and censorship is prompted by the fact that its religious program" makes mention of beliefs and practices of other religion". On the face of the law itself, there can conceivably be no basis for censorship of said program by the Board as much as the alleged reason cited by the Board does not appear to be within the contemplation of the standards of censorship set by law.22 Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article 20123 of the Revised Penal Code, as respondents mistakenly suggest. Article 201 deals with the subject of subsequent punishment; P.D. 1986 clearly treats with an altogether different matter -- prior restraint and censorship. The two laws stand at opposite poles in the continuum of regulation and punishment. Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial tests and standards utilized in determining those forms of expression that fall within the area of protected speech or expression, and because, as between prior restraints and the subsequent sanctions meted after proof of violation of specific penal statutes, the former prevents the speech or expression from entering the marketplace of ideas.24 That is exactly the effect of the orders assailed by petitioner in the instant case. More significantly, under the specific facts and circumstances of the case confronting us, what is sought to be kept out of the marketplace of ideas is not only ordinary speech or expression, two constitutional values which already enjoy primacy among our civil rights, but also religious speech or expression utilizing the medium of television. It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to all religious sects and denominations. I cannot agree. The "neutrality" standard has been raised in numerous free exercise cases before the courts, the most recent having been the Flag Salute cases.25 However, a regulation neutral on its face poses free exercise problems when it creates or has the potential of imposing undue burdens on religion. "Democratic government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones which relate to its political structure."26 Facially neutral standards are a facet of prevailing concensus. The old flag salute cases are testaments to the natural preference for the prevailing political and social morality over the religious liberty of minorities. The prevalent view tends to impose its idea of what is religious and what is not over and above the protests of the other religions, sects and denominations.27 Applying "contemporary Filipino standards" and values (the general test in P.D. 1986) to religious thought and expression allows an "overarching" into a constitutionally protected area and potentially would simply provide the Board with a veiled excuse for clamping down against unorthodox religious thought and expression. Measured in terms of the historic purpose of the guarantee, the free exercise provision in our Constitution not only insulates religion against governmental power, but when taken together with the Establishment clause, affords protection to religious minorities by preventing the use of that power in imposing the majority's will. We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the most private and sensitive of domains: the realm of religious freedom, thought and expression. In this domain, sharp differences may arise such that the tenets of one individual may seem the "rankest error" to his neighbor.28 In the process of persuading others about the validity of his point of view, the preacher sometimes resorts to exaggeration and vilification. However, the determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an administrative body such as a Board of censors.29 Even if the exercise of the liberties protected by the speech, expression and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there are appropriate laws which deal with such excesses. The least restrictive alternative would be to impose subsequent sanctions for proven violations of laws, rather than inflict prior restraints on religious expression. Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages whenever warranted. In our legal scheme, courts essentially remain the arbiters of the controversies affecting the civil and political rights of persons. It is our courts which determine whether or not certain forms of speech and expression have exceeded the bounds of correctness, propriety or decency as to fall outside the area of protected speech. In the meantime, the liberties protected by the speech and expression and free exercise clauses are so essential to our society that they should be allowed to flourish unobstructed and unmolested.30 The majority opinion professes fealty to freedom of religion which it openly admits, has been accorded a preferred status by the framers of our fundamental laws, and affirms that "(D)eeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech."31 The majority then adds pointedly 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 acts of censorship will be struck down. It failed in the case at bar."32 And yet, the majority at the same time would grant MTRCB the power to review the TV religious programs because "with its expertise," it "can determine whether its sulphur will bring about the substantive evil feared by the law."33 The majority thus would uphold the power of the Board as an administrative body with quasi-judicial power to preview and classify TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz34 wherein it was held that: As has been said, the performance of the duty of determining whether a publication contains printed matter of a libelous character rests with the Director of Posts and involves the exercise of his judgment and discretion. Every intendment of the law is in favor of the correctness of his action. The rule is (and we go only to those cases coming from the United States Supreme Court and pertaining to the United States Postmaster-General), that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong. I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the producer or exhibitor the burden of going to court and of showing that his film or program is constitutionally protected. This throws overboard the fundamental tenet that any act that restrains speech is presumed invalid and it is the burden of the censor to overthrow this presumption. In the context of the present case, if the Board disapproves a TV religious program or deletes a portion thereof, it is the exhibitor or producer who will go to court to prove that the Board is wrong and the court will not interfere with the Board's decision unless it can be clearly shown that it is wrong, following the ruling in Sotto vs. Ruiz. The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and expression and supplants a judicjal standard for determining constitutionally protected speech and expression with the censor's standard. The heavy burden on the imposition of prior restraints is shifted away from the state by imposing upon the exhibitor the obligation of proving that the religious programs fall within the realm of protected expression. This leaves the exhibitor with only two unwanted options: either 1) he himself deletes the portions which he anticipates the Board might possibly object to prior to submission to that body and thereby obtains the censor's nod, or 2) submits the Video tapes in their entirety and risks disapproval or deletion, in which case he may go to court and show that the Video tapes contain constitutionally protected speech and expression. In the first situation, the message loses its essence and substance. The second scenario may entail tremendous amount of money, time and effort in a prolonged litigation. Either case constitutes grievous assault on the freedom of speech and religion. The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV programs. In that case, the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or carried by, the mails of the Philippine Island, or be delivered to its addressee by any officer or employee of the Bureau of Posts. Petitioner's programs which are televised in the exercise of freedom of worship cannot be placed in the category of the printed matter proscribed in the old Administrative Code. Freedom of worship is such a precious commodity in our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who determines, without judicial safeguards, whether or not to allow the exercise of such freedom. The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema to a society which places high significance to these values. WHEREFORE, premises considered, I vote to grant the petition. Footnotes 1 CONST., art. III, sec. 5. 2 CONST., art. III, sec. 4. 3 The 1987 Constitution provides: Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights." This provision retains the wording of both the 1935 and 1973 Constitution. 4 Mc Daniel v. Patty, 435 U.S. 618, 626 (1998); "Clearly, freedom of belief protected by the free exercise clause embraces freedom to profess or practice that belief. Id., at 631 (Brennan, J., concurring). 5 Sherbert v. Vener, 374, U.S. 398 (1963). 6 125 SCRA 553 (1983). 7 Id., at 570. 8 343 U.S. 495 (1952). 9 Id., at 501. 10 Id. 11 380 U.S. 51 (1965). 12 Id., at 57. 13 101 Phil. 386 (1957). 14 Id., at 398. 15 Supra, note 11, at 534. (Dissenting). 16 The dichotomy between the freedom to believe and the freedom to act upon one's beliefs was succinctly summed up by this Court in its flag ceremony decision, See Ebralinag v. Division Superintendent of Schools of Cebu, 219 SCRA 270 (1993). 17 Goldman v. Weinberger, 54 LW 4298 (1986). 18 Sherbert v. Vener, 374 U.S. 333 [1963]. 19 Aglipay v. Ruiz, 64 Phil. 201. 20 Rollo, p. 130. 21 See, Miller v. Califonia, 413 U.S. 15 (1973); Roth v. U.S., 354 U.S. 476 (1957); Memoirs v. Massachusetts, 383 U.S. 413 (1966). 22 Rollo, p. 42. (Emphasis supplied). Article 201 provides: Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 24 See Near v. Minnesota, 283 U.S. 697 (1931). 25 Supra, note 15. See also Motion for Reconsideration, G.R. No. 95770, December 29, 1995. 26 Gianella, Religious Liberty, Nonestablishment and Doctrinal Development: Part I The Religious Liberty Guarantee, 80 Harvard L.R. 1381 (1967). 27 In any society, the most acculturated religion is that which exists in full harmony with society's values and institutions. Normally, the acculturated religion rarely comes at odds with society's legal norms in as much as those norms themselves are directly or indirectly influenced by the acculturated or dominant religion. The thorniest legal issues arise when a particular religion or sect advocates ideas separate from mainstream culture, or urges a radical deviation from dominant thought which clashes with orthodox norms or expectations. Notwithstanding the "acceptable" variety of expression which falls under the rubric of bona fide religious dogma, cross cultural religious clashes are bound to be mediated from the standpoint of the dominant religion. See, H. RICHARD NEIBHUR, CHRIST AND CULTURE (1951). 28 Cantwell v. Connecticut, 310 U.S. 296, at 310 (1939). 29 Whether or not administrative bodies might be more effective (and as suggested "liberal" as opposed to the traditional "conservatism" of courts) in this regard or in terms of protecting the constitutional rights of speech and expression, the process of assaying the constitutional validity of the Board's acts with respect to these guarantees is a function ultimately reposed by the constitution in the courts. 30 Id., at 310. 31 Majority opinion, pp. 13, 19. 32 Id. at 17. 33 Id., at 24. 34 41 Phi1. 468. The Lawphil Project - Arellano Law Foundation