G.R. No. 184389 - Dissenting Opinion

G.R. No. 184389, November 16, 2021,
♦ Decision, Zalameda, [J]
♦ Dissenting Opinion, Perlas-Bernabe, [J]
♦ Dissenting Opinion, Leonen, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]

ALLAN MADRILEJOS, ALLAN HERNANDEZ, GLENDA GIL, AND LISA GOKONGWEI-CHENG, PETITIONERS, VS. LOURDES GATDULA, AGNES LOPEZ, HILARION BUBAN, AND THE OFFICE OF THE CITY PROSECUTOR OF MANILA, RESPONDENTS.

Petitioners are Allan Madrilejos, Allan Hernandez, and Glenda Gil, Editor-in-Chief, Managing Editor, and Circulation Manager, respectively, of For Him Magazine Philippines (FHM), with Lance Y. Gokongwei and Lisa Gokongwei-Cheng, Chairman and President, respectively, of Summit Publishing, FHM Philippines' publisher. They were among the respondents in a criminal complaint filed by pastors and preachers from various churches with the Office of the City Prosecutor, City of Manila. The complaint was docketed I.S. No. 08G-12234. It alleged, among others, that from 2007 to 2008 respondents printed, published, distributed, circulated and/or sold in the city "scandalous, obscene and pornographic" identified magazines and tabloids in violation of Articles 200 and 201 of The Revised Penal Code (RPC) and Ordinance No. 7780 of the City of Manila.

Article 200. Grave scandal. — The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

Article 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:

A. Obscene shall refer to any material or act that is indecent, erotic, lewd or offensive, or contrary to morals, good customs or religious beliefs, principles or doctrines, or to any material or act that tends to corrupt or depr[a]ve the human mind, or is calculated to excite impure imagination or arouse prurient interest, or is unfit to be seen or heard, or which violates the proprieties of language or behavior, regardless of the motive of the printer, publisher, seller, distributor, performer or author of such act or material, such as but not limited to:

B. Pornographic or pornography shall refer to such objects or subjects of photography, movies, music records, video and VHS tapes, laser discs, billboards, television, magazines, newspapers, tabloids, comics and live shows calculated to excite or stimulate sexual drive or impure imagination, regardless of motive of the author thereof, such as, but not limited to the following:

C. Materials shall refer to magazines, newspapers, tabloids, comics, writings, photographs, drawings, paintings, billboards, decals, movies, music records, video and VHS tapes, laser discs, and similar matters.

Sec. 3. Prohibited Acts. — The printing, publishing, distribution, circulation, sale and exhibition of obscene and pornographic acts and materials and the production, public showing and viewing of video and VHS tapes, laser discs, theatrical or stage and other live performances and private showing for public consumption, whether for free or for a fee, of pornographic pictures as herein defined are hereby prohibited within the City of Manila and accordingly penalized as provided herein.

Sec. 4. Penalty Clause: Any person violating this ordinance shall be punished as follows:

Provided, that in case the offender is a juridical person, the President and the members of the board of directors, shall be held criminally liable; Provided, further, that in case of conviction. all pertinent permits and licenses issued by the City of Government to the offender shall be confiscated in favor of the City Government for destruction; Provided, furthermore, that in case the offender is a minor and unemancipated and unable to pay the fine, his parents or guardian shall be liable to pay such fine; provided, finally, that this ordinance shall not apply to materials printed, distributed, exhibited, sold, filmed, rented, viewed, or produced by reason of or in connection with or in furtherance of science and scientific research and medical or medically related art, profession, and for educational purposes. (Emphases supplied.)

Meantime, the Office of the City Prosecutor formed a panel of prosecutors to conduct the preliminary investigation. While it was ongoing, petitioners filed the present petition which, in the words of the ponencia of Honorable Associate Justice Francis H. Jardeleza (now retired) is premised "on the ground that Ordinance No. 7780 is invalid on its face for being patently offensive to their constitutional right to free speech and expression, repugnant to due process and privacy rights, and violative of the constitutionally established principle of separation of church and state."

In so many words, petitioners themselves described the present petition as both an as-applied and a facial challenge to the validity of Ordinance No. 7780.1 Petitioners prayed for a writ of prohibition restraining the conduct of the preliminary investigation and a declaration nullifying the Ordinance and enjoining its implementation.

As aptly summarized in the ponencia, petitioners particularized their as-applied and facial challenge to the constitutionality of Ordinance No. 7780 by -

x x x alleging that [Ordinance No. 7780 defines the terms "obscene" and "pornography" in such a way that a very broad range of speech and expression are placed beyond the protection of the Constitution, thus violating the constitutional guarantee to free speech and expression. Specifically, petitioners take issue with the "expansive" language of Ordinance No. 7780 which, petitioners claim, paved the way for complainants, a group of pastors and preachers, to impose their view of what is "unfit to be seen or heard" and "violate[s] the proprieties of language and behavior."2 x x x Petitioners' arguments are facial attacks against Ordinance No. 7780 on the ground of overbreadth.

The Office of the City Prosecutor filed its own Comment on the petition arguing in the strongest terms possible in favor of the constitutionality of the assailed Ordinance.

Meanwhile, the Office of the City Prosecutor issued Resolution dated June 25, 2013 dismissing the charges for violation of Article 200 and Ordinance No. 7780 but ordering the filing of an Information for violation of Article 201 (3) of the RPC. The pertinent portion of the Resolution, as quoted in the ponencia, reads:

If the act or acts of the offender are punished under another article of the Revised Penal Code, Article 200 is not applicable. Considering that the subject matter of the complaint is the obscene publication under Article 201 of the Revised Penal Code, [petitioners] should not be liable for Grave Scandal; hence, the complaint for Grave Scandal should be dismissed.

On the other hand, considering that the subject matter covered by the city ordinance of Manila is likewise the printing, publication, sale, distribution and exhibition of obscene and pornographic acts and materials, it is already absorbed in Article 201 of the Revised Penal Code and the complaint for violation of the city ordinance should likewise be dismissed.

Any person who has something to do with the printing, publication, circulation and sale of the obscene publications should be made liable. Hence, except for respondents Eugenio Lopez III, who was charged being the Chairman of the Board of ABS-CBN Publishing, Inc., Ernesto M. Lopez, being the President of the said publishing company, Lance Y. Gokongwei and Lisa Y. Gokongwei-Cheng, being the Chairman of the Board and President, respectively of Summit Publishing, their actual knowledge, consent, and/or participation in the obscene publications not having been clearly established by the evidence, said respondents should not be made liable thereto. However, all the other respondents being persons responsible for the publication, circulation and sale of the subject obscene publications should be made liable thereto.

All the other respondents, either being the Editor-in-Chief, Managing Director, General Manager or Circulation Manager of their respective publishing companies should be made liable for Violation of Section 201 paragraph 2(a) of the Revised Penal Code.

The criminal case against petitioners for violation of Article 201 (3) of the RPC was docketed Criminal Case No. 13-30084 and raffled to Branch 16 of the Regional Trial Court (RTC), City of Manila.

The ponencia further recounted: "Despite the dismissal of the charge for violation of Ordinance No. 7780, petitioners did not move to withdraw the present action, adamant that the Ordinance 'violates the constitutional guarantees to free speech and expression, violates the right to due process, and offends privacy rights." (Emphasis supplied.)

Back to Criminal Case No. 13-30084, the same was ordered dismissed with prejudice, upon petitioners' motion on account of the People's failure to prosecute.

(1) The dismissal of the criminal charges against petitioners for violation of the provisions of Ordinance No. 7780 has rendered this case moot and academic.

One. The ponencia characterized the present petition as one "for prohibition with prayer for the issuance of a preliminary injunction and/or temporary restraining order, seeking to prevent respondents from carrying out the preliminary investigation of the criminal complaint entitled Abante, et al. v. Asumbrado, et al., docketed as I.S. No. 08G-12234, on the ground that Ordinance No. 7780 is unconstitutional." This characterization is clarified by the ponencia's understanding of the petition's sole thrust, which " ... was to stop the conduct of the preliminary investigation into their alleged violation of an unconstitutional statute — a process that concludes with an Order whether or not to indict petitioners," and inferentially, of the unconstitutionality of Ordinance No. 7780 as a tool meant merely to terminate the preliminary investigation of the criminal complaint against petitioners. Therefore, as the ponencia ruled, with the dismissal on preliminary investigation of the complaint for violation of the Ordinance (along with Article 200 of the RPC) and during the trial of the criminal case for violation of Article 201 (3) of the RPC, it should follow that the outcome of the present petition as to the unconstitutionality of the Ordinance would have no practical use or value to petitioners.

Two. The ponencia defined a "moot and academic case" as "one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value." A moot case lacks "actual controversies involving rights which are legally demandable and enforceable x x x" without which courts have no jurisdiction to act.

The ponencia, however, did not explain (at least in this section) why an actual controversy had ceased to exist after the dismissal of the criminal case and why the declaration sought by petitioners would have no practical use or value to them or those similarly situated.

Instead, the ponencia went on to explain why the exception to the general rule that this Court should decline to act upon moot cases – the case is capable of repetition yet evading review.

The ponencia explained that this exception has two (2) requisites: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. The ponencia ruled that neither of these requisites applied to the present petition.

The ponencia held that the preliminary investigation which the present petition sought to stop did not involve a very short duration:

In this case, it must be noted that petitioners' purpose in filing the present action was to stop the conduct of the preliminary investigation into their alleged violation of an unconstitutional statute — a process that concludes with an Order whether or not to indict petitioners. Relatedly, and as it happened in this case, such an Order, if and when issued, is not of such inherently short duration that it will lapse before petitioners are able to see it challenged before a higher prosecutorial authority (i.e., the Department of Justice) or the courts. In fact, and unless reversed by the Secretary of Justice or by the courts, an order to indict does not lapse. Thus, the time constraint that justified the application of the exception in Southern Pacific Terminal Co. v. ICC3 (two-year validity of an Interstate Commerce Commission (ICC) cease and desist order) and Roe v. Wade4 (266-day human gestation period) does not exist here.

It also ruled that there was no reasonable expectation that petitioners would be subjected to the same action again because:

x x x when the criminal charges against petitioners were dismissed with prejudice, they can no longer be refiled without offending the constitutional proscription against double jeopardy. Petitioners have also failed to demonstrate a reasonable likelihood that they will once again be hailed before the Office of the City Prosecutor of Manila (OCP) for the same or another violation of Ordinance No. 7780. It should be noted that the OCP Manila did not even question the dismissal of the case. There is likewise no showing that the pastors and preachers who initiated the complaint here filed, or have threatened to file, new charges against petitioners, over new material published in FMH Philippines alleged to be obscene, after the case below was dismissed as early as July 19, 2016.

The ponencia took an exacting interpretation of the second requisite. The Court required reasonable expectation or a demonstrated probability that the same complaining party would be subjected to the same action again. This second element is missing if it were highly speculative and hypothetical, or highly doubtful if he or she can demonstrate a substantial likelihood, that the same complaining party would be subjected to the same action again.

This ruling stressed that this second element may refer to history that it was not far-fetched that the same complaining party would be subjected to the same action again. An affair of annual occurrence is one where there exists a reasonable expectation that the same complaining party would be subjected to the same action again.

(2) Ordinance No. 7780, an anti-obscenity law, cannot be facially attacked on the ground of overbreadth because obscenity is unprotected speech.

One. The ponencia held that petitioners' facial challenge based on the overbreadth doctrine was improper because this ground applied only to free speech cases – which the present petition was not. According to the ponencia, as this petition stemmed from an obscenity and a criminal prosecution, such facial challenge is not available. (Emphasis supplied)

First, a facial overbreadth challenge is limited to cases involving protected speech, and obscenity is not a protected speech. The ponencia justified this conclusion by holding that "laws that regulate or proscribe classes of speech falling beyond the ambit of constitutional protection cannot, therefore, be subject to facial invalidation because there is no 'transcendent value to all society' that would justify such attack." (Emphasis supplied)

And, second, a facial overbreadth challenge does not apply even to vague and overbroad penal statutes since the latter have no possible "chilling effect" upon protected speech.5 Thus:

x x x The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the US Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." x x x

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." (Emphases supplied)

The ponencia further affirmed the rule that "only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible."

Two. The ponencia then characterized Ordinance No. 7780 as a criminal or penal statute that criminalizes or penalizes an unprotected speech –obscenity. As thus characterized, this Court ruled that the Ordinance cannot be challenged on its face.

It was in 1942 when the US Supreme Court first held in the landmark case of Chaplinsky v. New Hampshire6 that the lewd and the obscene are not protected speech and therefore falls outside the protection of the First Amendment. x x x These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Beginning from Roth v. United States7 (implicit in the history of the First Amendment is the rejection of obscenity) to Miller v. California, (this much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment), the US Supreme Court has invariably held that obscene materials do not come under the protection of the First Amendment x x x

As earlier stated, this Court has long accepted Chaplinsky's analysis that obscenity is unprotected speech. In 1985, We held, in the case of Gonzalez v. Katigbak,8 that the law on freedom of expression frowns on obscenity.

x x x But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. (Emphases supplied)

Three. The ponencia held that while petitioners had no right to assail a law that regulates unprotected speech, such as Ordinance No. 7780, using a facial challenge, they may do so as-applied, viz:

This is not to suggest, however, that these laws are absolutely invulnerable to constitutional attack.

A litigant who stands charged under a law that regulates unprotected speech can still mount a challenge that a statute is unconstitutional as it is applied to him or her. In such a case, courts are left to examine the provisions of the law allegedly violated in light of the conduct with which the litigant has been charged. If the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. (Emphases supplied)

An as-applied challenge would require petitioners to go to trial to allow the trial court to determine whether "the materials complained of as obscene were indeed proscribed under the language of Ordinance No. 7780." This might also entail the adoption of the Miller9 standards if petitioners raise them as a defense:

(a) whether "the average person, applying contemporary community standards" would find that 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.

x x x petitioners could argue based on the Miller standards as applied to the specific material over which they were being prosecuted, they should be acquitted.

On the other hand, the trial court, assuming it adopts Miller, will then have to receive evidence and render opinion on such issues as to: (a) who is the "average" Filipino; (b) what is the "community" against which "contemporary standards" are to be measured; (c) whether the subject material appeals to the "prurient" interest; (d) whether the material depicts "patently offensive" sexual conduct: and (e) whether the material "taken as a whole" has serious value.

The decision of the RTC, whether or not in favor of petitioners, may then be brought up on appeal to the Court of Appeals (CA), whose decision may later on be brought to this Court for review. Such is the process observed by the US Supreme Court in all of the obscenity cases cited by the ponencia which led to the adoption of the Miller standards in the US. The cases, including Miller, all involved appellate review conducted with the benefit of a full record.

The ponencia stressed that none of the cases challenging anti-obscenity laws involved a facial attack on the ground of overbreadth. It also rejected, on separation of powers rationale, petitioners' plea to superimpose the Miller standards on Ordinance No. 7780, thus:

We stress at this point that the Court in Miller did not impose that the standards it laid down be legislated. On the contrary, the Court there was very careful not to overstep its judicial boundaries:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

In fact, Miller explicitly held that the obscene conduct depicted or described in materials which is sought to be regulated "must be specifically defined by the applicable state law, as written or authoritatively construed." x x x Accordingly, whether a material is obscene or not is still for the Court to decide as it applies or construes a specific statute in a particular case.

Finally, x x x as applied to the actual facts of the case is the proper precedent to follow if the Court were to consider adopting the Miller standard in our jurisdiction. Thus, and until the proper case presents itself, prudence dictates that the Court should exercise judicial restraint.

Petitioners moved for reconsideration of the dismissal of the petition. The Resolution penned by the learned Honorable Chief Justice Diosdado M. Peralta affirmed the dismissal by reiterating the ponencia's rationale.

Since 2018, FHM has shifted from paper-based to digital publications.10 There is no reason to believe that this shift has exempted petitioners as publishers and distributers of these magazines in digital format from the coverage of Ordinance No. 7780. If at all, this shift may have far worse adverse implications upon them due to Section 6 of RA 10175 (2012), Cybercrime Prevention Act of 2012, which states:

SECTION 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

I joined the ponencia when the case was first decided. My vote was based on my assessment then of the cogency of its ratio decidendi.

On petitioners' motion, however, and after a more introspective analysis of the arguments raised in my senior colleagues' respective Opinions and relevant case law both new and old, I now vote to grant the petition and to declare Ordinance No. 7780 as unconstitutional.

Two. Has the petition seeking to declare Ordinance No. 7780 as unconstitutional been rendered moot –

Three. May Ordinance No. 7780 be challenged on its face on the ground of overbreadth though it is a penal statute that seeks to punish alleged obscene and indecent expressions?

Four. If Ordinance No. 7780 may be challenged facially, does Ordinance No. 7780 on its face violate freedom of expression for being overbroad; and as a content-based criminalization, the strict scrutiny test?

Five. As applied to petitioners, did Ordinance No. 7780 violate their freedom of expression when it sought to prohibit and penalize their acts of printing, publishing, distributing, circulating and/or selling certain identified issue of their FHM Magazine?

It is my respectful submission that the pitfalls in the original ponencia started with its characterization of the petition as not being a freedom of expression or free speech case, and its approach to lump Ordinance No. 7780 together with penal laws that has nothing to do with expression.

The ponencia held that this case is not about free speech because obscene expression is unprotected speech. This, however, begs the question.

The petition was initiated precisely to test whether indeed Ordinance No. 7780 impacts on expression, and if it does, whether it only penalizes obscene expression or includes within its ambit protected speech. To at once concede that the assailed Ordinance is all about obscenities is to assume the truthfulness of the issues that in the first place are precisely the subject of the petition.

The characterization of the petition as not being a free speech case is erroneous because the subject matter of Ordinance No. 7780 – materials or acts such as photography, movies, music records, video and VHS tapes, laser discs, billboards, television, magazines, newspapers, tabloids, comics and live shows – is a form of speech or expression, and the assailed Ordinance punishes on its face the printing, publishing, distributing, circulating and/or selling of these materials or acts on account of their respective contents or messages.

The materials or acts subject of Ordinance No. 7780 are forms of speech or expression since they each intend to convey a particularized message, and each of the messages they intend to convey is most likely to be understood as such by those who heard, read, or viewed it.11

Here, the particularized messages targeted by the Ordinance are indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior. As stated, this Ordinance punishes on its face the printing, publishing, distributing, circulating and/or selling of these materials or acts on account of these contents or messages.

The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its protection does not end at the spoken or written word. While we have rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," we have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." x x x Hence, we have recognized the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam, of a sit-in by blacks in a "whites only" area to protest segregation; of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam; and of picketing about a wide variety of causes.12 (Emphasis supplied)

Here, the petition challenges Ordinance No. 7780 precisely because it seeks to control by criminalizing the expressions of petitioners and those similarly situated because of the criminalized meanings the expressions convey.

Note that laws regulating speech or expression are classified as either content-based or content-neutral. For this reason, challenges to such laws are treated and analyzed as free speech cases.

Content-neutral laws involve regulations that impact upon the time, place, and manner of the expression or the secondary effects of the speech and only minimally the message or meaning conveyed or imparted. Ordinance No. 7780 is not a content-neutral penal law because it has nothing to do with the time, place, and manner of the subject-matter expression or its secondary effects.

On the other hand content-based laws target speech based on its communicative content.13 These laws ask what the subject materials or acts communicate as meanings and what punishments or regulations are to be imposed these materials or acts on account of these meanings. Stated differently, the test to determine whether a government regulation is content-based is as follows:

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This common-sense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys.14

As held in Survivors Network of Those Abused by Priests, Inc. v. Joyce,15 [a] statute 'would not be content neutral if it were concerned with undesirable effects that arise from 'the direct impact of speech on its audience' or '[l]isteners' reactions to speech."' To illustrate:

In Boos, a District of Columbia provision banned display of any sign within 500 feet of a foreign embassy which tended to bring the foreign government into ''public odium" or ''disrepute." 485 U.S. at 315 (internal quotation marks omitted). The Court decided that the District's law was content based and unconstitutional, for its ban on sign displays sought to regulate "speech due to its potential primary impact" – that is the effect "that speech has on its listeners." Id. at 321, 329. Because the law sought "'to protect the dignity of foreign diplomatic personnel by shielding them from speech that is critical of their governments," it was content based.16

To elucidate further, a rule is "content-based on its face" if it defines several terms based on the message the material or act conveys, and then subjects each message or category of message to different restrictions,17 or in this case, to different criminal penalties.

Ordinance No. 7780's ban on allegedly indecent and obscene materials and acts is obviously designed to protect against these materials and acts' "potential primary impact." The Ordinance thus seeks to criminalize their printing, publishing, distributing circulating and/or selling. Some of the messages which petitioners seek to communicate may well be considered indecent and obscene by their target audience. The very topics which petitioners wish to address, including eroticism, sexuality, sex stories, sexual abuse, women and LGBTQ rights, sectarian and religious beliefs and quirks, fashion, anything and everything that a reader may not find in broadsheets and regular publications, can elicit strong emotional responses whether from the religious (such as the complainants against petitioners), church members, victims of abuse and their supporters, those erotically inclined, or any other member of the public. Others may take exception to the materials or acts demonstrations, others may accept and embrace the messages – the fact remains that the control sought by the Ordinance emanates from the materials and acts' respective communicative actual and perceived intent.

Once a law is determined to be either content-based or content-neutral, it necessarily follows that the analysis in the challenge to that law would have to take account of the standards inherent in free speech cases.

Ordinance No. 7780 is thus a content-based criminal prohibition. It operates upon the materials or acts therein mentioned precisely because of the topic they discuss or the idea or message they express. This Ordinance draws distinctions on what is criminal and what is not criminal based on the message a speaker conveys. As stated, the criminal messages are indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior. The Ordinance punishes on its face the printing, publishing, distributing, circulating and/or selling of materials or acts that convey these contents or messages.

The petition seeks to declare Ordinance No. 7780 because of its adverse impact on petitioners' free expression as a content-based criminal law. The analysis of the arguments raised in the petition necessarily calls for the application of free speech standards. To reject this petition as a free speech case is to undermine progressive generations of human rights jurisprudence on the right to free expression.

Additionally, the characterization of the petition as not a free speech case is especially problematic since'"[i]n evaluating the free speech rights of adults,' the Supreme Court has "made it perfectly clear that 'sexual expression which is indecent but not obscene is protected by the First Amendment."'18 To illustrate, nude dancing of a certain type is expressive conduct, so that "any ordinance regulating nude dancing must be analyzed to ensure it does not unduly impair the exercise of First Amendment rights."19

To repeat, the holding that ordinances aimed at regulating adult entertainment businesses may constitute content-based or content-neutral regulations20 seriously and necessarily implies that such ordinances must be reviewed as free speech cases.

It is of course true that obscene expressions are beyond the succor of the right to expression. But, before we may even reach the conclusion that Ordinance No. 7780 penalizes only speech outside of constitutional protection, which in this case would be obscene, and is therefore, constitutionally permissible, we must first examine the Ordinance from the perspectives of free speech.

In other words: we must treat the petition as a free speech case. Thus: Is the Ordinance one that impacts on expression? And because the Ordinance does, is it a content-based or a content-neutral prohibition? Here, I have explained that the Ordinance is a content-based prohibition. Further: What injuries have been caused to petitioners' expression? Do these injuries persist? Or have they been mooted? May these injuries be still remedied through this petition? How do we test the validity of the criminal punishment of expression as specified in the assailed Ordinance? And, what is the result of the application of the appropriate test?

Free speech cases allow both on-its-face challenge and as-applied challenge. A facial challenge alleges overbreadth and as a result covers instances or illustrative incidents that may not be the petitioner or plaintiff's own situation or situations. The offending law may be invalidated on the ground of overbreadth – this is because the chilling effect on one's expression is an injury-in-fact in free speech cases21 that may be remedied by the invalidation. Content-based regulations of expression are presumptively unconstitutional and may be justified only under strict scrutiny if the government proves that they are narrowly tailored to serve compelling state interests.

This Court's ruling also erred in lumping Ordinance No. 7780 together with penal laws that have nothing to do with expression, such as the criminal law against plunder referred to in the ponencia's citations.

With utmost respect, this approach is erroneous since laws that impact on free expression are analyzed differently from other penal laws. Thus, in American Civil Liberties Union v. The Florida Bar:22

The injury requirement is most loosely applied--particularly in terms of how directly the injury must result from the challenged governmental action--where First Amendment rights are involved, because of the fear that free speech will be chilled *1494 even before the law, regulation, or policy is enforced.

922 F.2d at 760 (citing Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985) **25 (allowing pre-enforcement challenge to local ordinance based on the First Amendment); Eaves, 601 F.2d 809). Schack's fear of disciplinary action was reasonable and thus, the harm he suffered was an objective chill of his First Amendment rights.

This is precisely the approach taken by the Third Circuit in Stretton, 944 F.2d 137. There, a judicial candidate brought a pre-enforcement challenge to a section of Pennsylvania's Code of Judicial Conduct that bars judicial candidates from announcing their views on disputed legal or political issues. The plaintiff alleged a chill of his protected speech rights and the disciplinary authorities disclaimed that the proposed speech would violate the canon. Nevertheless, the court held that a case or controversy existed. The court wrote:

The Boards take the position here as they did in the district court that the topics plaintiff proposes to discuss in the course of his campaign do not violate the Code. The Boards, however, do not have the final word **32 on interpretation of the Code. Moreover, plaintiff has also challenged the Canon on overbreadth grounds and may maintain the action on that basis. See Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 484, 109 S. Ct. 3028, 3037, 106 L. Ed. 2d 388 (1989)23 (Emphasis supplied)

Two. The present petition seeking to declare Ordinance No. 7780 as unconstitutional has not been rendered moot when (a) after preliminary investigation, the criminal complaint for violation of Ordinance No. 7780 was dismissed (along with Article 200 of the RPC but upon another ground) through the Resolution dated June 25, 2013 of the Office of the City Prosecutor since "the subject matter covered by the city ordinance of Manila x x x is already absorbed in Article 201 of the Revised Penal Code x x x" and (b) during trial, Criminal Case No. 13-30084 for violation of Article 201 (3) of The Revised Penal Code was dismissed with prejudice upon petitioners' motion due to the People's failure to prosecute.

The ponencia correctly defined a "moot and academic case" as "one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value." A moot case lacks "actual controversies involving rights which are legally demandable and enforceable x x x" without which courts have no jurisdiction to act.

The doctrine of mootness is intimately connected with the interrelated requirements of standing, injury and case and controversy. This is because only if an actual controversy ceases to exist at any stage of litigation would the case become moot and should be dismissed.24 Hence, if standing, injury and case and controversy have been established to exist and continues to exist, it necessarily follows that the case is not moot.

The case or controversy requirement must be met throughout the entirety of the proceedings.25 Whether an actual and live controversy exists over the constitutionality of a law, when a party brings a pre-enforcement challenge or a challenge after-the-fact, that is, when the government has voluntarily ceased the challenged conduct, the court must ask whether "the conflicting parties present a real, substantial controversy which is definite and concrete rather than hypothetical and abstract."26

In order to prove that a real and substantial controversy exists, a plaintiff must show "a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement."27

On the other hand, to have standing, a plaintiff must (1) have suffered an injury in fact, (2) that is fairly traceable to the challenged action of the defendant, and (3) that will likely be redressed by a favorable decision.28

Standing and case and controversy depend upon, among others, the existence and continued existence of an injury in fact. Where the case points to these three (3) items, it cannot be said that mootness adversely impacts on the case.

Here, the dismissal of the complaint for violation of Ordinance No. 7780 on preliminary investigation and the dismissal on trial of the criminal case for violation of Article 201 (3) of The RPC did not stop the injury-in-fact to petitioners, did not end the enforceability of the Ordinance, and did not render ineffectual the declaration of the Ordinance as void for being unconstitutional. It must be stressed that the instant petition is not just about halting the criminal proceedings against petitioners but also involves making sure that the criminal proceedings do not happen again and that petitioners are not ever chilled, unsettled, alarmed, petrified, and terrified in making the speech or expression they have been doing. In sum, these matters clarify why the case has not been rendered moot and is not moot, and why petitioners have retained their standing and are still entitled to seek relief on judicial review.

In a pre-enforcement challenge, when a plaintiff has stated that he or she "intends to engage in a specific course of conduct 'arguably affected with a constitutional interest,' he or she "does not have to expose himself [or herself] to enforcement to be able to challenge the law. If the injury is certainly impending, that is enough."29

Thus, a plaintiff has "suffered an injury in fact if he or she (1) has an "intention to engage in a course of conduct arguably affected with a constitutional interest, (2) his or her intended future conduct is 'arguably . . . proscribed by [the policy in question],' and (3) the threat of future enforcement of the [challenged policies] is substantial."30

In a challenge after-the-fact, that is, when the government has voluntarily ceased the challenged conduct, as in here, a live case or controversy remains if there is some possibility that "the defendants will seek to enforce the challenged regulation." This is the case if, as in the present case, the prosecutors continue to assert that, despite their acquiescence in the dismissal of the complaint for violation of Ordinance No. 7780, the latter is constitutional.31 This assertion of the prosecutors is found in the Comment they filed against the present petition.

Therefore, I have no reason to think that Ordinance No. 7780 would not be enforced again in the future against petitioners or others similarly situated.32 This is because neither the prosecutors at the Office of the City Prosecutor in the City of Manila nor any panel to be constituted by that office is bound by the Resolution dated June 25, 2013. More, the panel of prosecutors that investigated the criminal complaint against petitioners is not the final arbiter of whether a violation of the Ordinance cannot be pursued simultaneously with a charge for violating Articles 200 and 201 of The RPC as was resolved in the preliminary investigation against petitioners.

An absolute bar from any re-filing of similar criminal complaints would moot this case.33 Unfortunately, however, that bar is not yet in place. The "[v]oluntary cessation of challenged conduct" moots a case "only if it is 'absolutely clear that the allegedly wrongful behavior could not be reasonably expected to recur."' Certainly, the continuing existence of the unaltered Ordinance No. 7780 and the Office of the City Protector's continuous assertion of its constitutionality and enforceability do not make it "absolutely clear" that the Office of the City Prosecutor will not change its mind as expressed in its Resolution dated June 25, 2013.34

ii. Injury-in-fact, Case and Controversy and Causation (fairly traceable to defendant's action)

There is a real and immediate fear of indictment and prosecution against petitioners, together with their collateral negative effects of again violating and chilling their right to free speech when the Office of the City Prosecutor again accepts a criminal complaint for violation of Ordinance No. 7780 against petitioners or those similarly situated, entertains the criminal complaint by forming a panel of prosecutors to interrogate them and resolve the criminal complaint, and files and prosecutes the Information against them for violating the Ordinance, with the trial court issuing warrants for their arrest, requiring bail for their continuous appearance, limiting their right to travel or movement, and entering criminal records under their respective names.

The same facts – the continuing existence of the unaltered Ordinance No. 7780 and the Office of the City Prosecutor's continuous assertion of the constitutionality and enforceability of Ordinance No. 7780 – represent a "very real, and very fearsome, possibility of [a criminal complaint and] prosecution," and "ample demonstration that [petitioners'] concern with [criminal complaint and prosecution] has not been 'chimerical."35 To be sure, past enforcement of speech-related laws and the continuing assertions of their validity and enforceability can legitimately assure injury-in-fact.36

As held in American Civil Liberties Union v. The Florida Bar,37 a live case or controversy continues to exist where "plaintiffs 'wanted to pursue a specific course of action which they knew was at least arguably forbidden by the pertinent law'; and (2) "all that remained between the plaintiff and impending harm was the defendant's discretionary decision – which could be changed – to withhold [enforcement]."

American Civil Liberties Union v. The Florida Bar further notes that the United States Supreme Court has held that a case or controversy remains after a defendant voluntarily ceases an alleged improper behaviour but is free to resume it at any time, a situation that often arises when the parties enter into a voluntary dismissal of the action to which the defendant is not bound – as in this.

This situation could result in hardship and absurdity. If the defendant resumes the harmful activity, and plaintiff goes back to court, the defendant can again cease to engage in the harmful conduct and argue that the case is moot. To address this hardship and absurdity, American Civil Liberties Union v. The Florida Bar cited United States v. W.T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) and held that in this situation, the only way the case would be rendered moot is if "the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated."

Here, the wrong that would reasonably be repeated is the continuous assertion by the Office of the City Prosecutor that Ordinance No. 7780 is constitutional and enforceable as well as the continued enforcement of the assailed Ordinance. Because it is not bound by the dismissal of the criminal complaint against petitioners in other criminal complaints, a reasonable expectation exists that this wrong will be repeated. This straightforward assertion of constitutionality and enforceability would be enough to chill speech and would cause and perpetuate the aforementioned correlative negative consequences. These constitute petitioners' injury-in-fact that would then establish the live case or controversy in the present free speech case.

In Willson v. City of Bel-Nor,38 the plaintiff was charged with a violation of a sign-regulation ordinance, and as a result, sought an injunction against the charge and a declaratory relief against the sign-regulation ordinance. But before this action could be resolved, the City nolle prosequi the Information. The court held that the nolle prosequi of the Information did not moot the case for injunction and declaratory relief. It explained:

x x x "A case becomes moot if it can be said with assurance that there is no reasonable expectation that the violation will recur or if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004). "The heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (internal quotation marks omitted)." Here, there is no change to the Ordinance and the Court finds Plaintiff is still in violation of it.

As in Willson, respondents did not discharge their burden of proving that the challenged conduct cannot reasonably be expected to start up again. Actually, respondents could not have discharged this burden because they have consistently asserted the constitutionality and enforceability of Ordinance No. 7780.

In City of Erie v. Pap's A.M.,39 the United States Supreme Court rejected the claim that the case for injunction and declaratory relief as regards an anti-nudity ordinance has been mooted by the closure of the subject establishment offering public nudity. This is because: (1) the establishment was then "still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie;" and (2) the City that enacted the ordinance would be suffering an ongoing injury because it lost the court case in the Pennsylvania Supreme Court and as a result would be barred from enforcing the public nudity provisions of its ordinance. The respective interests of the nudity establishment, the City, and the administration of justice itself demanded a resolution of the case of injunction and declaratory relief to its finality:

x x x If the challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. And Pap's still has a concrete stake in the outcome of this case because, to the extent Pap's has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting to manipulate the Court's jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness here.40 (Emphasis supplied)

The same interests are impacted here. The City of Manila can enforce without challenge Ordinance No. 7780. Petitioners can operate its publications business without fear of prosecution and public relations backlash. This Court would have an interest in precluding litigants from insulating a favorable decision, as in the case of the Office of the City Prosecutor's Resolution dated June 25, 2013, from our review.

Notably, in both types of challenge, pre-enforcement and after-the fact, the injury requirement is most loosely applied – particularly in terms of how directly the injury must result from the challenged governmental action – where the right to free expression is involved, because of the fear that free speech will be chilled even before the law, regulation, or policy is enforced41 or when the enforcement is voluntarily stopped.

Here, petitioners' fear of prosecution was and remains reasonable because of the continued assertion by the Office of the City Prosecutor of the constitutionality and enforceability of Ordinance No. 7780. The harm they have suffered and will continue to suffer was and remain to be an objective chill of their right to free expression and the aforesaid negative collateral consequences of the filing of a criminal complaint and its prosecution. This harm substantiates the claim that a case or controversy existed and continues to exist.42

The nature of the petition as a facial challenge is also significant. It is a factor in determining whether it is clearly likely that "the future threat of enforcement of the [challenged policy] is substantial."43 Thus:

At this point, "[t]he distinction between facial and as-applied challenges bears legal significance." See Schlissel, 939 F.3d at 766. Whereas "[t]here must be some evidence that [a] rule would be applied to the plaintiff in order for that plaintiff to bring an as-applied challenge," that is not the case for facial challenges. Instead, "when dealing with pre-enforcement challenges to recently enacted (or, at least, non-moribund) statutes that facially restrict expressive activity by the class to which the plaintiff belongs, courts will assume a credible threat of prosecution in the absence. of compelling contrary evidence."44 (Emphasis supplied)

This presumption of a credible threat of prosecution applies to this case at bar. There is no evidence to the contrary.

Lastly, mootness is defeated as well by the existence of causation and redressability.45 Here, the enforcement though aborted and the continued threat of enforcement of the challenged Ordinance have caused petitioners' chill of their expression and negative collateral consequences from their adverse involvement in the criminal justice system. These injuries could be redressed by a categorical and non-discretionary ruling enjoining the enforcement of Ordinance No. 7780.46

In any event, assuming without conceding that the present case appears technically mooted, it still has in reality a live controversy because the legal questions it presents for decision will recur and again evade review.47 The petition falls within the category of cases that are "capable of repetition, yet evading review" exception to mootness.

As the ponencia correctly said, this exception applies when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a reasonable expectation that the same complaining party would be subjected to the same action again."48 As the party asserting the exception, petitioners bear the burden of establishing that it applies.49

Petitioners satisfied the first prong of the capable-of-repetition-yet-evading-review exception.

Ordinarily, there is no preliminary investigation of criminal complaints for violations of ordinances since the penalties for these violations do not exceed imprisonment for four (4) years.50 Under the Rules of Court, the process should be finished in no more than ten days from the date of filing of the criminal complaint.51 This timing discrepancy virtually guarantees that the direct filing will expire before the constitutional challenge reaches the courts, let alone, the Supreme Court.

Notably, too, the power of judicial review, or the power to declare unconstitutional a statute, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation lies in the courts and not with an administrative officer or agency such as the Office of the City Prosecutor in Manila City or its panels.52 Hence, it would not be the proper office to resolve; and therefore would be useless to raise, the issue of constitutionality of Ordinance No. 7780 before the Office of the City Prosecutor.

The second prong of the requisites – ''a reasonable expectation that the same complaining party would be subjected to the same action again" – presents a more difficult question. It has been affirmed that the "reasonable expectation" of repetition must be more than "a mere physical or theoretical possibility."

But what exactly must be capable of repetition? Nathan M. v. Harrison Sch. Dist. No. 2,53 illustrated the different ways this question has been answered:

x x x This difficulty stems, in part, from a lack of precision in our cases describing exactly what must be likely to recur. In Fischbach, vve asked whether the complaining party would be "subjected to the action again." Fischbach, 38 F.3d at 1161 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979)). Then in Wyoming v. U.S. Dep't of Agric. 414 F.3d 1207, 1212 (10th Cir. 2005), we asked the same question, but about potentially recurrent "conduct." We reframed the question again in McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1255-56 (10th Cir. 2010), which spoke in terms of an "issue" or an "alleged injury" that could be repeated, and in Parker v. Winter, 645 F. App'x 632, 635 (10th Cir. 2016) (unpublished) (quoting Honig, 484 U.S. at 319 n.6), asking whether a claimant had demonstrated that a recurrence of the "dispute" was more *1042 probable than not and whether the "controversy" was capable of repetition. (Emphases supplied)

As summarized in Nathan M. v. Harrison Sch. Dist. No. 2,54 "the 'wrong' that is, or is not, 'capable of repetition' must be defined in terms of the precise controversy it spawns." The alleged 'wrong' must be put in terms of the legal questions it presents for decision."

Pulling these various threads together, to satisfy the second prong of the capable-of-repetition exception to mootness, petitioners bear the burden of establishing that it is reasonably likely55 that the Office of the City Prosecutor, to repeat, will again violate and chill their right to free speech by accepting a criminal complaint for violation of Ordinance No. 7780 against petitioners or those similarly situated, entertaining the criminal complaint by forming a panel of prosecutors to interrogate them and resolve the criminal complaint, and filing and prosecuting the Information against them for violating the Ordinance, with the trial court issuing warrants for their arrest, requiring bail for their continuous appearance, limiting their right to travel or movement, and entering criminal records under their respective names.

Petitioners have clearly discharged their burden of proving the wrongs that will likely happen if the present case would continue to be declared moot, as was done by this Court in its present ruling. The second prong of the capable-of-repetition-yet-evading-review exception has also been satisfied.

But to justify its ruling that the present case has been rendered moot, the ponencia held that the dismissal with prejudice of the criminal case against petitioners before the trial court would ensure that they would not be prosecuted again for violation of Ordinance No. 7780.

With utmost respect, this ruling is based on an erroneous appreciation of the facts, and as result, inaccurate conclusion of law.

The dismissal with prejudice by the trial court referred solely to the charge for violation of Article 201 (3) of the RPC, and not to the charge for violation of Ordinance No. 7780. The dismissal with prejudice precludes only the re-filing of the same acts complained of as constituting the offense under Article 201 (3) of the RPC. The dismissal with prejudice has nothing to do with the violation of the City Ordinance or with the other issues of the condemned publications whether prior or subsequent to the latter.

To recall, the complaint for violation of Ordinance No. 7780 was processed at the level of the Office of the City Prosecutor in the City of Manila. It was dismissed by said office in its Resolution dated June 25, 2013 not because the complaint was unmeritorious; rather, the dismissal was based on its theory that the elements of this offense were absorbed by the complainants' other claims for violations of the RPC. There is also no res judicata or double jeopardy in proceedings before the Office of the City Prosecutor.56

Hence, both requisites for the application of the capable-of repetition-yet-evading-review exception to mootness are present. There is no way the present petition has been mooted.

Another exception to mootness justifies the foregoing conclusion – negative collateral consequences.57 To recall, the doctrine of mootness is justified by the requirement of an "actual controversy arising between adverse litigants who have a legally cognizable interest in the outcome of the case."58 This requirement is in turn warranted by the lack of constitutional authority to render mere advisory opinions.59

A case becomes moot when a court "can no longer grant effective relief."60 And even if a case was not moot when it was first filed' intervening events since its filing can render it moot.61

As explained, the present petition was not moot when it was filed. It has not been rendered moot by changes in circumstances. Assuming without conceding that it has become moot, the negative collateral consequences apply to support this Court's action on the merits.

The exception for negative collateral consequences means what it says: negative collateral consequences are likely to result from the action being reviewed. This exception is based on the premise that –

x x x the Court should still consider a case – even if it no longer involves a live controversy – if the action challenged by the appellant will continue to pose negative consequences for the appellant if it is not addressed. It is a natural extension of the concept that "[t]he central question of all mootness problems is 'whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties."' For example, we have held that the exception applied in a mental health case in which an involuntary hospitalization order – which had expired – nevertheless could have resulted in "legal disabilities" and "social stigmatization" for the patient past its effective date. "[D]espite [the] appellant's continued hospitalization under an order for continued treatment, the negative collateral consequences of being initially adjudicated mentally ill and then involuntarily hospitalized may continue to plague [the] appellant with both legal disabilities and social stigmatization."62 x x x (Emphasis supplied)

For the negative collateral consequences exception to apply, "the contemplated prospective 'impact on the parties' that justifies the exception must be specific to the claimant.63 It may not be a generalized grievance shared widely among the public.

Petitioners' case meets the negative collateral consequences exception because of these negative collateral consequences: (i) their right to free speech continues to be chilled by the real and reasonable fear of complaint and prosecution, which arises from respondents' continuous assertion of the constitutionality and enforceability of Ordinance No. 7780; (ii) the legal disabilities and other collateral consequences resulting from the filing of the criminal complaint, its prosecution and the actions of the trial court; and (iii) the social stigmatization of being referred to as purveyors of smut and kindred terms.

These negative collateral consequences are specific to petitioners. They have actually suffered these consequences. They may be shared with others similarly situated, but these others are certainly not the shared widely-among- the-public-as-a-whole disqualified by the exception. The similarly situated is a very small and compact community of publishers engaged in the same erotic and benign expressions as petitioners.

In sum, the present petition is not moot. But even assuming it has become moot, two (2) exceptions to mootness apply, as heretofore discussed.

Three. Ordinance No. 7780 may be challenged on its face on the ground of overbreadth even though it is a penal statute that seeks to punish alleged obscene and indecent expressions.

I also respectfully submit that the ponencia was mistaken when it disallowed petitioners, facial challenge of Ordinance No. 7780 to insist only on an as-applied challenge.

It has long been settled that a law impacting on speech or expression is reviewable not only on the basis of a plaintiff's own injuries but also upon its overbreadth.64 Willson v. City of Bel-Nor65 explained:

"[A] law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."' United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) (quoting Wash. State Orange v. Wash. State Repub. Party, 522 U.S. 442, 449 n.6 (2008)); Langford v. City of St. Louis, 2020 WL 1227347. at *6 (E.D. Mo. Mar. 5, 2020). "The First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges." Virginia v. Hicks, 539 U.S. 113; 118, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003). "[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when 'judged in relation to the statute's plainly legitimate sweep.'" City of Chicago v. Morales, 527 U.S. 41, 52, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)). "The aim of facial overbreadth analysis is to eliminate the deterrent or 'chilling' effect an overbroad law may have on those contemplating conduct protected by the First Amendment." Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977).

To stress, the overbreadth doctrine exists "to prevent the chilling of future protected expression."66 Therefore, any law imposing restrictions so broad that it chills speech outside the purview of its legitimate regulatory purpose will be struck down.67 For the same reason, petitioners would "have standing to challenge the Ordinance's overbreadth even though they do not dispute that the Ordinance applies to each of them." The overbreadth doctrine constitutes an exception to traditional rules of standing and allows claimants to assert the rights of parties not before the court."68

To conclude, the assailed Ordinance, as it criminalizes certain forms of speech, may be challenged on its face on the ground of overbreadth as a free speech or expression issue. More, since the Ordinance is a content-based criminalization, it is presumptively unconstitutional and may only be validated if it passes the strict scrutiny test.

Four. As Ordinance No. 7780 may be challenged facially, on its face, it violates freedom of expression for being overbroad, and as a content-based criminalization, the strict scrutiny test.

A three-part test is used to determine whether a statute is unconstitutionally overbroad.69 Thus:

"The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Snider v. City of Cape Girardeau, 752 F.3d 1149, 1158 (8th Cir. 2014) (quoting United States v. Williams, 553 U.S. 285. 293, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)). "After construing the statute, the second step is to examine whether the statute criminalizes a 'substantial amount' of expressive conduct." Id., citing Williams, 553 U.S. at 292). Third, courts must "ask whether *20 the statute is readily susceptible to a limiting construction which would render it constitutional." (Id., citing Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988)). (Emphasis supplied)

The Ordinance's expansive definition of what is obscene – the particularized messages targeted by the Ordinance are indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior – and its criminalization of the printing, publishing, distributing, circulating and/or selling of these materials or acts on account of these contents or messages, applies to a substantial amount of expressive conduct. The Ordinance is not vague. It is clear as to its meanings and implications. But it is overbroad.

I can illustrate numerous examples of expressive conduct that the Ordinance prohibits beyond what it should only be criminalizing:

Rigoberto Tiglao’s op-ed entitled "Did Jesus Exist?"70 This appears to be offensive to religious beliefs. Mr. Tiglao in fact prefaces his op-ed with this opening paragraph: "AT this time, when our culture, dominated for nearly four centuries by the Hispanic model of late-medieval Catholicism, imposes on us several days of contemplating the Christian Messiah, I dare post again a piece I wrote two years ago, discussing whether Christ did exist in the first place. Someday, sometime in your lives, you will have to choose: the Red or the Blue pill."

Mr. Tiglao's op-ed "The Real Origins of Christmas."71 This appears to be offensive not just to religious beliefs but also to good customs, principles or doctrines, one having a tendency to corrupt or depr[a]ve the human mind, characterized by unfitness to be seen or heard, or violation of the proprieties of language or behavior.

Nadine Lustre's sexy photos published in ABS-CBN's Lifestyle webpage.72 The photos appear to be erotic.

Same-sex stories as narrated and depicted in the internet.73 They appear to be a smorgasbord of everything the Ordinance criminalizes – indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior.

As illustrated in Survivors Network of Those Abused by Priests, Inc. v. Joyce:74

As amici point out, critical portrayals of Muhammad outside a mosque or of the Pope outside a Catholic Church might well be considered profane or indecent by their audiences. Others may find language using the name of holy figures as swear words not only disrespectful, but profane as well. Similar expressions in the near vicinity of a house of worship have the potential to disturb or disquiet those present for worship. The meaning of "profane," or irreverence to the sacred, is not a well defined legislative term familiar to people of different faiths. Any silent demonstration outside a house of worship would likely be able to create a disturbance only by the content of its message. Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment.

Some of the messages which appellants seek to communicate may well be considered rude and offensive by their target audience. The very topics which the record indicates appellants wish to address, including sexual abuse and the concealment of such crimes, can elicit strong emotional responses whether from clergy accused of wrongdoing, victims of abuse and their supporters, or church members. Others may take exception to the demonstrations by Call to Action advocating for the ordination of women and church acceptance of gay, lesbian, and transgender people. (Emphasis supplied)

Any movie or video featuring a single shot of a person's nude or partially-covered buttocks or a woman's partially covered breast is an obscene material or act under the Ordinance, irrespective of whether the content constitutes "adult entertainment" or causes the type of secondary effects, such as crime (sexual and nonsexual) and public health risks, that any government may seek to regulate.75

Any enlightened court would find these examples to illustrate that Ordinance No. 7780 creates a "prohibition of alarming breadth."76 Making things even more problematical is the fact the the ponencia did not identify the compelling state interests that the Ordinance would want to pursue and accomplish. Thus, the Ordinance is overbroad and facially invalid because the impermissible applications of the law are substantial when judged in relation to its plainly legitimate sweep if at all.

Further, the Ordinance is not readily susceptible to a limiting construction because it would have to be rewritten in order to conform to constitutional requirements.77 Indeed:

The courts do not rewrite laws in these circumstances, as this would invade the "legislative domain." (citing Stevens, 559 U.S. at 481); Snider, 752 F.3d at 1158 ("No limiting construction would be consistent with any plausible understanding of the legislature's intent"). "Limiting constructions of state and local legislation are more appropriately done by a state court or an enforcement agency." Willson, 924 F.3d at 1004 (quoting Ways v. City of Lincoln, 274 F.3d 514, 519 (8th Cir. 2001)).78

The free expression rights of adults are not the same as or identical to the free speech rights vis-à-vis minors. "In evaluating the free speech rights of adults," the United States Supreme Court has "made it perfectly clear that 'sexual expression which is indecent but not obscene is protected by the First Amendment."79 Also, "[s]peech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it."80

Here, there is nothing in Ordinance No. 7780 which limits its scope to any established criminal practice, much less to, for example, the transmission of harmful material to a minor with the intent of facilitating the sexual exploitation of the minor. The Ordinance is actually very broad in scope when it comes to online speech, notably, the assailed FHM magazines that have been transformed into digital editions. The Ordinance is especially offensive to free expression in the digital platform because it forces every speaker on the internet in every state or community anywhere in the Philippines or even the world to abide by the alleged prevailing community standards of the City of Manila, even if the online speech would not be found harmful in any other location. Truly:

To paraphrase the Supreme Court, it is neither realistic nor constitutionally sound to read the First Amendment as forcing the people of New York City or San Francisco to restrict their speech to abide by what is deemed acceptable speech in Vermont. See Miller v. California, 413 U.S. 15, 32, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). "People in different States vary in their tastes and attitudes and this diversity is not to be strangled by the absolutism of imposed uniformity. x x x"81 (Emphases supplied)

Ordinance No. 7780 also lacks "practical safe harbors or exceptions"82 for most publishers. With the exception of "materials printed, distributed, exhibited, sold, filmed, rented, viewed, or produced by reason of or in connection with or in furtherance of science and scientific research and medical or medically related art, profession, and for educational purposes," the Ordinance applies to an entities and individuals that communicate the prohibited messages on whatever platform. Thus, the Ordinance "effectively drives protected and valuable speech for adults out of the 'marketplace of ideas."'83

The constitutionality of a restriction on speech depends in large part on whether it is content-based and thus subject to the most exacting or strict scrutiny, or a content-neutral time, place, manner or secondary effects regulation subject to intermediate scrutiny.84

To recall, content-based laws are those that target speech based on its communicative content. As already explained above, Ordinance No. 7780 is a content-based criminalization of overly broad forms of speech. It defines obscenity based on the message the subject material or act conveys and then subjects each category to varying criminal penalties. It is also content-based because enforcement authorities must determine85 whether a material or act evokes indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior.

Because the Ordinance is a content-based prohibition, it must satisfy strict scrutiny regardless of the City of Manila's "benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the [prohibited] speech."86 They are presumptively unconstitutional. They may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. If the restriction is not narrowly tailored to achieve a compelling interest, it is an unconstitutional restraint on free speech.87

There is nothing on record about the government interests sought to be advanced by Ordinance No. 7780. If it was meant to curb prurient interests or patently offensive sexual conduct, the broad sweep of the messages it criminalizes – indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior – are not narrowly tailored to meet its objectives.

These messages may capture even contrarian ideas simply because they offend others and may be interpreted by them as indecent, erotic, lewd, offensive to morals, good customs, religious beliefs, principles or doctrines, etc. The Ordinance therefore runs a substantial risk of suppressing ideas in the process, as it impermissibly requires enforcement authorities to look into the content of the speaker's message in order to enforce it. This is not permissible. The right to free expression guarantees that the government ought not to prohibit and inhibit the expression of an idea merely because society finds the idea itself offensive or disagreeable.88

The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. [B]y demanding a close fir between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency.89

Here, the approach of Ordinance No. 7780 to lump together everything contrarian under the criminal term obscene manifests its overwhelming intention not only to censor ideas disagreed with, but also to use the most convenient mode of doing so, that is, by banning and criminalizing everything not to a complainant's or the Ordinance enforcer's liking.

The Ordinance also fails strict scrutiny analysis because respondents have failed to demonstrate why a less restrictive provision would not be as effective in addressing the goal of curbing prurient interest and patently offensive sexual conduct.90 There are several other criminal statutes that are potentially less restrictive alternatives to Ordinance No. 7780. Although very insistent on the continuing validity and enforceability of this Ordinance, the Office of the City Prosecutor was in fact able to identify provisions in the RPC that appear to be narrowly tailored to suppressing prurient and patently offensive sexual conduct.

"When First Amendment compliance is the point to be proved, the risk of non-persuasion – operative in all trials – must rest with the Government, not with the citizen."91 The Ordinance remains presumptively invalid, and this presumption has not been rebutted here because the Ordinance has drawn content-based distinctions that are not necessary to achieve the asserted interest against prurient and patently offensive sexual conduct.

Five. As applied to petitioners, Ordinance No. 7780 has violated their freedom of expression when it sought to prohibit and penalize their acts of printing, publishing, distributing, circulating and/or selling certain identified issues or editions of FHM Magazine.

An as-applied challenge consists of a challenge to the law's application only as-applied to the party before the court.92 To prevail, a plaintiff must show that the law is unconstitutional because of the way it was applied to the particular facts of his or her case.93

For the same reasons discussed with respect to facial overbreadth and failed strict scrutiny, Ordinance No. 7780 has the effect of unconstitutionally circumscribing petitioners' free speech as-applied to the assailed FHM magazines. For sure, not all of their expressive content would be unprotected speech. But unfortunately, the standards set forth in the Ordinance are so broad that they prohibit and criminalize even those portions in petitioners' magazines that are protected speech. The Ordinance is incapable of distinguishing between protected and unprotected speech. As a result of this sweeping coverage, the entirety of the content of petitioners' magazines is deemed criminal by the Ordinance simply because they are offensive to the religious beliefs of the pastors and preachers who filed the criminal complaint and what they deem to be the appropriate language and behavior.

In any event, I do not find the assailed issues or editions of FHM Magazine to be obscene or in any other manner unprotected by the right to free expression. As-applied to these magazines, Ordinance No. 7780 unconstitutionally curtails petitioners' free speech.

The prevailing test of obscenity in our jurisdiction94 is founded upon Miller v. California.95 Under Miller, the basic guidelines to determine whether a work is obscene and, therefore, subject to state regulation, are as follows:

All three prongs of the Miller test must be satisfied for a work to be found obscene.96

Neither do the magazines depict sexual conduct in a patently offensive manner. United States v. Various Articles of Merch.98 has explained this second prong as follows:

The Supreme Court emphasized in Miller that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct." The Court, recognizing the difficulty and the dangers of attempting to regulate any form of expression, gave a few examples of what a state statute could define for regulation under part (b) of the Miller standard:

In Fernando v. Court of Appeals,99 this Court adopted the foregoing formulation of patently offensive to define this phrase and prevent unbridled discretion in its invocation.

The photographs in the assailed magazines do not depict private parts at all. Though there are photographs of women and at times men in various stages of undress, their private parts, however, are not exposed. Neither of these private parts is being exhibited nor being shown off. While their bodies, including provocative imaginings or inciting to sensual imagination of their private parts, are the focal point of the photos, the fact remains that none of these photos actually shows off the model's private parts. At a minimum, the exposure of one's private parts would be necessary to aggravate the images as being patently offensive sexual conduct.

Nor can I conclude that the magazines depict or describe patently offensive hard core sexual conduct. Nudity, much less near nudity is not enough to make the magazines legally obscene under the Miller standards. We need more than nudity to up the ante. Unfortunately, there are no explicit sexual positions on display. Only the titillating pictures and postures and sultry looks are all there is to even suggest that the materials are obscene. The magazines thus fall far outside the zone of hardcore sexual conduct that may constitutionally be found to be patently offensive.

The final prong of the Miller test, as stated, is whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The assailed FHM magazines possess political value. "The term 'political' which we employ here is broad enough to encompass that which might tend to bring about 'political and social changes."'100 The magazines espouse alternative lifestyles and alternative communities, which celebrate sexuality and sensuality as acceptable behavior, values and mindset. It is true that the political value of these magazines is not as immediately evident as the political value of, say, the Economist or the Political Science Review. "However, publications dedicated to presenting a visual depiction of an alternative lifestyle, a depiction with a decidedly Utopian flavor, have political value similar to the political value of articles criticizing government regulation of that and other lifestyles."101

I would suggest that the subject FHM magazines do not even reach the status of an indecent speech, which at any rate is a category of protected speech:

Indecent speech is protected by the First Amendment but is disfavored and may be regulated. Indecent speech, while not defined by the Supreme Court, has been explained by the Federal Communications Commission (FCC) as that which "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards x x x sexual or excretory activities or organs." The FCC uses a contextual balancing test of three factors when looking at broadcast material to determine whether or not it is indecent: "(1) whether the description or depiction is explicit or graphic, (2) whether that material dwells on or repeats at length descriptions or depictions of sexual or excretory organs, and (3) whether the material appears to pander or is used to titillate or shock." Thus, unlike obscene speech, indecent speech need not appeal to the prurient interest or lack serious literary, artistic, political, or scientific value in order to be regulated.

The First Amendment protects sexual speech not rising to the level of obscenity, but provides less protection than it does for more valuable forms of speech. The Supreme Court has explained that:

[E]ven though we recognized that the First Amendment will not tolerate the total suppression of erotic materials x x x society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate x x x Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every school child can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice.

Generally, when the government regulates speech on the basis of its indecent content, courts must apply strict scrutiny.102 (Emphasis supplied)

Sexual speech is a specie of indecent speech.103 It is disfavored but still protected. On the other hand, free speech does not protect obscenity. The government may ban or regulate it. But it must do so narrowly. Laws that prohibit obscenity may be found unconstitutional if they potentially prohibit an excessive amount of non-obscene speech.104 Private possession of obscene materials is generally protected, while distribution and transmission of such materials is not.105

The subject FHM magazines are benign expressions of sexuality and sensuality. They are playful flirtations with beauty and sexiness. But they are not obscene by Miller's standards. Neither are they even indecent expression as defined by the United States' Federal Communications Commission. Thus, as applied to these magazines, the Ordinance has violated petitioners' free speech when it was used to prohibit and penalize, as well as shame and bring opprobrium to, their acts of printing, publishing, distributing, circulating and/or selling these protected magazines.

A final point. I agree with the learned Associate Justice Marvic F. Leonen that the constitutional protection given to sexual speech has ridden the crest of the commodification of women, the sexual gratification of the heterosexual male specie, and the dehumanization and demonization of the other (female, lesbian, gay, bisexual and queer) bodies. I find it both funny and disconcerting that in defining the obscene and indecent, the puerileness of the expression to the male penis or its exposure of the female nipple has been the standard of constitutional protection. Justice Leonen could be correct that this jurisprudential development is largely a reflection of the communities we live in – the rise and power of the macho society within and outside of the family and into institutions of power and authority, the courts included.

Helen Longino106 describes the sexual speech that has also greatly benefitted from the constitutional protection to free speech:

Pornography lies when it says that our sexual life is or ought to be subordinate to the service of men, that our pleasure consists in pleasing men and not ourselves, that we are depraved, that we are fit subjects for rape, bondage, torture, and murder ... [this] fosters more lies about our humanity, our dignity, and our personhood. (Emphases supplied)

Catherine MacKinnon explains, sexual expression causes harm not because it leads to a particular violent act against women; rather, the harm of sexual expression lies in its negative impact on a consumer's understanding of gender and sexuality – it generates a social environment in which women are devalued and in which sex is eroticized violence by which men seek gratification.107

The oppression of women occurs through sexual subordination. It is the use of sex as the medium of oppression that makes the subordination of women so distinct from racism or prejudice against a group based on religion or national origin. Social inequality is created in many different ways x x x the radical responsibility is to isolate the material means of creating the inequality so that material remedies can be found for it. (Emphases supplied)

The Miller test references community standards and societal values. The question is the locus of these standards and values. Upon whose standards and values do we anchor what is obscene and what is not obscene, what is protected and what is unprotected? It is said that the standards and values should be that of the average person – what was intolerable to the average member of the national community would determine obscenity.

But the average person is also situated somewhere, sometime, and somehow. We do not live in homogenous communities. There will always be those who would be the majority, the minority, the marginalized, and the underrepresented and unrepresented. Substantive equality will have to account as well for their standards and values.

I believe that majoritarian community standards tolerate if not accept the materials and acts published in the challenged FHM magazines. The popularity and acceptability of this magazine as a whole are off-the-roof. They are considered fashionable and rarely referred to as smut. The magazines provide political, entertainment, and aesthetic values to the communities in which they are read. Therefore, the magazines should easily pass the Miller test.

But, I do not accept that what is tolerated and accepted by the majority is necessarily liberating and progressive. We recognize as a rule of law the equality of the dignities and personhood of all peoples regardless of race, age, sexual orientation, ethnicity and other indicators of one's autonomy and actualization in society. The community standards test must account for these differences and allow for the distinctiveness of individuals and communities in our midst.

In place of the standards-of-the-community-of-the-average-person test, I respectfully endorse the harm-based approach in assessing the community standards of tolerance.109 The approach requires the courts to determine using evidence about the harmful effects of the expression and inference from the expression itself "what the community would tolerate others being exposed to on the basis of the degree of harm [to the others] that may flow from such exposure."110

Harm in this context has three types: "(1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti social conduct; and (3) harm to individuals participating in the conduct."111

Harm may either be in the form of anti-social conduct or anti-social attitudes.112 In terms of conduct, "criminal law may limit conduct and expression in order to prevent people who may see it from becoming predisposed to acting in an anti-social manner."113 As regards attitudinal harm, the expression must be one (i) to which the public has been exposed and (ii) which "perpetuates negative and demeaning images of humanity and is likely to undermine respect for members of the targeted groups and hence to predispose others to act in an anti-social manner towards them."114

The degree of harm that would necessitate regulation, prohibition or even criminalization, was assessed by ascertaining whether the material or conduct was "incompatible with the proper functioning of society."115 The threshold for establishing such a standard must be high, since membership in a diverse society mandates tolerance of conduct or material of which one disapproves.116 High means it must be "objectively shown beyond a reasonable doubt to interfere with the proper functioning of society."

The proof of harm demands more than speculation and vague generalizations.117 There must be a real risk that the expression will cause any one of the types of harm – the sexual act or speech at issue will lead to attitudinal changes and hence to anti-social behaviour.118 The causal link between images of sexuality and anti-social behaviour cannot be assumed; rather, a link must be established first between the sexual act or speech and the formation of negative attitudes, and second between those attitudes and real risk of antisocial behaviour.119 Expert evidence may help to establish actual harm, while the probability (and not merely the possibility) of the risk of harm may be shown from the act or expression itself.

In Regina v. Labaye,120 the accused was charged with operating a "common bawdy-house," a violation under Section 210(1) of the Criminal Code of Canada, for owning the club, in which persons who paid membership fees and their guests could assemble and engage in group and oral sex and masturbate. These activities were consensual and, while members paid the club membership fees, the members did not pay each other in exchange for sex. In determining whether the accused was guilty of owning a bawdy-house, the Canadian Supreme Court had to decide whether the activities taking place within should be classified as indecent, since bawdy-houses are, by definition, houses in which prostitution or indecency occurs or is planned to occur. The accused was found guilty.

The Canadian Supreme Court acquitted the accused. Using the harm-based approach in arriving at the community standards of tolerance, the Court found no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society. It held that consensual conduct behind code-locked doors can hardly be supposed to jeopardize society. Nothing was involved that encouraged sexist and misogynist attitudes. The sex was consensual and not prostitution. The threat of sexually transmitted diseases are more of a health issue than a harm that comes exclusively from deviant sex.

The harm-based approach could help in pursuing inclusive community standards. It allows courts to consider all of the stakeholders, not only the community of the average person, in a meaningful manner.

Admittedly, though, Labaye was decided the way it did on the ground that no harm to others that the community would have been unwilling to tolerate and accept happened. The cognitive lens was still the perspective of the others, and not the autonomy of the participants in the bawdy-house. Indeed, the "swingers might have been more concerned that the practice at issue was central to the way in which they lived their lives – to their actualization in society."121

Rather than recognizing the integral nature of the practice to the aggrieved community and then utilizing that affirmative principle to buttress the right to practice the lifestyle, the Court instead arrives at its conclusion by considering the negative implications of swinging as a lifestyle. The underlying messages are that swinging appeals to base interests, that the average member of society is not likely to suffer, and that swingers are not harmed since they are already attitudinally changed; therefore the practice in the case at bar was permissible.

The focus does not consider all of the stakeholders in a meaningful manner, most notably the beliefs of the aggrieved swingers. The members outside of mainstream society were analyzed as "others" and were left to behave as they wished so long as "our" interests were not harmed.122

Just the same, the harm-based approach can be enriched "with a multitude of variables that would fully situate the harm analysis in a contextually sensitive manner."123 In determining whether the sexual act or speech is harmful as it unduly exploits sex and would be accepted or tolerated by society, the harms test may take into account factors such as the sex, race, age, disability, and sexual orientation of the participants; the purposes of the materials; the intended audience, the existence of real or apparent violence; the existence of consent; the nature of the publication, including the relationship of the impugned materials to the entirety of the publication; the framework and manner of production, distribution and consumption; and the benefits to viewers and readers from the production and dissemination of the materials.124

Arguably, an enriched harm-based context would satisfy the concerns for equality and against stereotyping and discrimination. This would be the case in the context of sexually explicit materials that challenge the dominant heterosexual male perspective and are enriched by factors that are tailored to account for members of the other communities.

I am aware that developments in jurisprudence as remedies to societal inequities take time to percolate, and the thoughts I have discussed would likely remain just that, idle thoughts. In any event, the law is only one among many forums for change. As Brenda Cossman cautions, "while the law is busy trying to discipline these unruly sexual subjects, these sexual subjects are actually being normalized through other competing discourses."125

I conclude that petitioners have established that they are entitled to a declaration that Ordinance No. 7780 is unconstitutional on its face and as applied to them.

ACCORDINGLY, I vote to GRANT the Petition. City of Manila Ordinance No. 7780 should be declared UNCONSTITUTIONAL.