Ginzburg v.

United States
383 U.S. 463 (1966)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Syllabus
Petitioner Ginzburg and three corporations which he controlled were convicted of violating the federal
obscenity statute, 18 U.S.C. 1461, by mailing three publications: an expensive hardcover magazine
dealing with sex, a sexual newsletter, and a short book purporting to be a sexual autobiography. The
prosecution charged that these publications were obscene in the context of their production, sale,
and attendant publicity. Besides testimony as to the merit of the material, abundant evidence was
introduced that each of the publications was originated or sold as stock in trade of the business of
pandering, i.e., the purveying of publications openly advertised to appeal to the customers' erotic
interest. Mailing privileges were sought from places with salaciously suggestive names; circulars for
the magazine and newsletter stressed unrestricted expression of sex, and advertising of the book
which purported to be of medical and psychiatric interest, but whose distribution was not
confined to a professional audience, dwelt on the book's sexual imagery. In finding
petitioners guilty, the trial judge applied the obscenity standards first enunciated in Roth
v. United States, 354 U. S. 476, and the Court of Appeals affirmed.
Held: Evidence that the petitioners deliberately represented the accused publications as erotically
arousing and commercially exploited them as erotica solely for the sake of prurient appeal amply
supported the trial court's determination that the material was obscene under the standards of
theRoth case, supra. The mere fact of profit from the sale of the publication is not
considered; but, in a close case, a showing of exploitation of interests in titillation by pornography
with respect to material lending itself to such exploitation through pervasive treatment or description
of sexual matters supports a determination that the material is obscene. Pp. 383 U. S. 470-476.
338 F.2d 12, affirmed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania [Footnote 1]
convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an
indictment charging violation of the federal obscenity statute,. Each count alleged that a resident of
the Eastern District received mailed matter, either one of three publications challenged as obscene,
or advertising telling how and where the publications might be obtained. The Court of Appeals for the
Third Circuit affirmed, 338 F.2d 12. We granted certiorari, 380 U.S. 961. We affirm. Since petitioners
do not argue that the trial judge misconceived or failed to apply the standards we first enunciated
in Roth v. United States, 354 U. S. 476, the only serious question is whether those standards
were correctly applied. [Footnote 4]
In the cases in which this Court has decided obscenity questions since Roth, it has regarded the
materials as sufficient in themselves for the determination of the question. In the present case,
however, the prosecution charged the offense in the context of the circumstances of production, sale,
and publicity, and assumed that, standing alone, the publications themselves might not be obscene .
We agree that the question of obscenity may include consideration of the setting in which
the publications were presented as an aid to determining the question of obscenity, and
assume without deciding that the prosecution could not have succeeded otherwise . As
in Mishkin v. New York, post, p. 383 U. S. 502, and as did the courts below, 224 F.Supp., at 134, 338
F.2d at 14-15, we view the publications against a background of commercial exploitation of erotica
solely for the sake of their prurient appeal. [Footnote 5] The record in that regard amply supports
the decision of the trial judge that the mailing of all three publications offended the
statute. [Footnote 6]
The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly
newsletter, and The Housewife's Handbook on Selective Promiscuity (hereinafter theHandbook), a
short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles
and photo-essays on the subject of love, sex, and sexual relations. The specified issue of
Liaison, Vol. 1, No. 1, contains a prefatory "Letter from the Editors" announcing its
dedication to "keeping sex an art and preventing it from becoming a science." The
remainder of the issue consists of digests of two articles concerning sex and sexual
relations which had earlier appeared in professional journals and a report of an interview
with a psychotherapist who favors the broadest license in sexual relationships. As the trial
judge noted, "[w]hile the treatment is largely superficial, it is presented entirely without restraint of
any kind. According to defendants' own expert, it is entirely without literary merit."
224 F.Supp. at 134. The Handbook purports to be a sexual autobiography detailing with complete
candor the author's sexual experiences from age 3 to age 36. The text includes, and prefatory and
concluding sections of the book elaborate, her views on such subjects as sex education of children,
laws regulating private consensual adult sexual practices, and the equality of women in sexual
relationships. It was claimed at trial that women would find the book valuable, for example, as a
marriage manual or as an aid to the sex education of their children.
Besides testimony as to the merit of the material, there was abundant evidence to show that each of
the accused publications was originated or sold as stock in trade of the sordid business of pandering
-- "the business of purveying textual or graphic matter openly advertised to appeal to the erotic
interest of their customers." [Footnote 7] EROS early sought mailing privileges from the postmasters
of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were
chosen only for the value their names would have in furthering petitioners' efforts to sell their
publications on the basis of salacious appeal; [Footnote 8] the facilities of the post offices were
inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing
privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison
thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500
copies of the Handbook were mailed.
The "leer of the sensualist" also permeates the advertising for the three publications. The circulars
sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly
boasted that the publishers would take full advantage of what they regarded as an unrestricted

license allowed by law in the expression of sex and sexual matters. [Footnote 9] The advertising for
the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the
introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book's
informational value and its putative therapeutic usefulness, his remarks are preoccupied with the
book's sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or
psychiatrists, who might independently discern the book's therapeutic worth. [Footnote 10] Inserted
in each advertisement was a slip labeled "GUARANTEE" and reading,
"Documentary Books, Inc. unconditionally guarantees full refund of the price of THE
HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you
because of U.S. Post Office censorship interference."
Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss
petitioners put on the publications, eliminating any doubt what the purchaser was being asked to
buy. [Footnote 11]
This evidence, in our view, was relevant in determining the ultimate question of obscenity, and, in
the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of
petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as
prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation
would tend to force public confrontation with the potentially offensive aspects of the work; the
brazenness of such an appeal heightens the offensiveness of the publications to those who are
offended by such material. And the circumstances of presentation and dissemination of material are
equally relevant to determining whether social importance claimed for material in the courtroom
was, in the circumstances, pretense or reality -- whether it was the basis upon which it was traded in
the marketplace or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on
the sexually provocative aspects of his publications, that fact may be decisive in the determination of
obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the
materials involved, the fact that they originate or are used as a subject of pander ing is relevant to
the application of the Roth test.
A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine
to be obscene as a whole, since he concluded that only four of the 15 articles predominantly
appealed to prurient interest and substantially exceeded community standards of candor, while the
other articles were admittedly nonoffensive. But the trial judge found that "[t]he deliberate and
studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient
interest and to insulate through the inclusion of nonoffensive material."
224 F.Supp. at 131. However erroneous such a conclusion might be if unsupported by the evidence of
pandering, the record here supports it. EROS was created, represented and sold solely as a claimed
instrument of the sexual stimulation it would bring. Like the other publications, its pervasive
treatment of sex and sexual matters rendered it available to exploitation by those who would make a
business of pandering to "the widespread weakness for titillation by pornography." [Footnote 12]
Petitioners' own expert agreed, correctly we think, that " [i]f the object [of a work] is
material gain for the creator through an appeal to the sexual curiosity and appetite," the
work is pornographic. In other words, by animating sensual detail to give the publication a
salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise
debatable conclusion.
A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to
social importance concerned this publication. Before selling publication rights to petitioners, its
author had printed it privately; she sent circulars to persons whose names appeared on membership
lists of medical and psychiatric associations, asserting its value as an adjunct to therapy. Over 12,000
sales resulted from this solicitation, and a number of witnesses testified that they found the work
useful in their professional practice. The Government does not seriously contest the claim that the
book has worth in such a controlled, or even neutral, environment. Petitioners, however, did not sell
the book to such a limited audience, or focus their claims for it on it supposed therapeutic or
educational value; rather, they deliberately emphasized the sexually provocative aspects of the work
in order to catch the salaciously disposed. They proclaimed its obscenity, and we cannot conclude
that the court below erred in taking their own evaluation at its face value and declaring the book as
a whole obscene despite the other evidence. [Footnote 13]
The decision in United States v. Rebhuhn, 109 F.2d 512, is persuasive authority for our conclusion.
[Footnote 14] That was a prosecution under the predecessor to 1461, brought in the context of
pandering of publications assumed useful to scholars and members of learned professions. The books
involved were written by authors proved in many instances to have been men of scientific standing,
as anthropologists or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed
that many of the books were entitled to the protection of the First Amendment, and "could lawfully
have passed through the mails, if directed to those who would be likely to use them for the purposes
for which they were written. . . ." 109 F.2d at 514. But the evidence, as here, was that the defendants
had not disseminated them for their "proper use, but . . . woefully misused them, and it was that
misuse which constituted the gravamen of the crime." Id. at 515. Speaking for the Court in affirming
the conviction, Judge Learned Hand said:
". . . [T]he works themselves had a place, though a limited one, in anthropology and in
psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the
sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them
were not obscene per se. In several decisions, we have held that the statute does not in all
circumstances forbid the dissemination of such publications. . . . However, in the case at bar, the
prosecution succeeded . . . when it showed that the defendants had indiscriminately flooded the
mails with advertisements, plainly designed merely to catch the prurient, though under the guise of
distributing works of scientific or literary merit. We do not mean that the distributor of such works is
charged with a duty to insure that they shall reach only proper hands, nor need we say what care he
must use, for these defendants exceeded any possible limit; the circulars were no more than appeals
to the salaciously disposed, and no [factfinder] could have failed to pierce the fragile screen, set up
to cover that purpose."
109 F.2d at 514-515.CONCLUSION:l
We perceive no threat to First Amendment guarantees in thus holding that, in close
cases, evidence of pandering may be probative with respect to the nature of the material

in question, and thus satisfy the Roth test. [Footnote 15] No weight is ascribed to the fact
that petitioners have profited from the sale of publications which we have assumed, but
do not hold, cannot themselves be adjudged obscene in the abstract; to sanction
consideration of this fact might indeed induce self-censorship, and offend the frequently
stated principle that commercial activity, in itself, is no justification for narrowing the
protection of expression secured by the First Amendment. [Footnote 16] Rather, the fact that
each of these publications was created or exploited entirely on the basis of its appeal to prurient
interests [Footnote 17] strengthens the conclusion that the transactions here were sales of illicit
merchandise, not sales of constitutionally protected matter. [Footnote 18] A conviction for mailing
obscene publications, but explained in part by the presence of this element, does not
necessarily suppress the materials in question, nor chill their proper distribution for a
proper use. Nor should it inhibit the enterprise of others seeking, through serious
endeavor, to advance human knowledge or understanding in science, literature, or art. All
that will have been determined is that questionable publications are obscene in a context
which brands them as obscene as that term is defined in Roth -- a use inconsistent with
any claim to the shelter of the First Amendment. [Footnote 19]
"The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the
materials are thus placed in context from which they draw color and character. A wholly different
result might be reached in a different setting."
Roth v. United States, 354 U.S. at 354 U. S. 495 (WARREN, C.J., concurring).
It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of
the material must be judged. Where an exploitation of interests in titillation by pornography is shown
with respect to material lending itself to such exploitation or description of sexual matters, such
evidence may support the determination that the material is obscene even though, in other contexts,
the material would escape such condemnation.
Petitioners raise several procedural objections, principally directed to the findings which
accompanied the trial court's memorandum opinion, Fed.Rules Crim.Proc. 23. Even on the
assumption that petitioners' objections are well taken, we perceive no error affecting their substantial
rights.
Affirmed

Roth v. United States

354 U.S. 476 (1957)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
1. In the Roth case, the constitutionality of, which makes punishable the mailing of
material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an
indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene
circulars and advertising, are sustained. Pp. 354 U. S. 479-494.
2. In the Albert case, the constitutionality of 311 of West's California Penal Code Ann., 1955,
which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is "obscene
or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent
books and for writing, composing, and publishing an obscene advertisement of them, are sustained.
Pp. 354 U. S. 479-494.
3. Obscenity is not within the area of constitutionally protected freedom of speech or
press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due
Process Clause of the Fourteenth Amendment, as to the States.
(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was
not intended to protect every utterance. Pp. 354 U. S. 482-483.
(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the people. P. 354 U. S. 484.
(c) All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial
ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the
guaranties, unless excludable because they encroach upon the limited area of more important
interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly
without redeeming social importance. Pp. 354 U. S. 484-485.
4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely
because, under the trial judges' instructions to the juries, convictions could be had without proof
either that the obscene material would perceptibly create a clear and present danger of antisocial
conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois,343 U. S.
250. Pp. 354 U. S. 485-490.
(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex
in a manner appealing to prurient interest -- i.e., material having a tendency to excite
lustful thoughts. P.354 U. S. 487.
(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech
and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 354 U.
S. 487-488.
(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity,
is whether, to the average person, applying contemporary community standards, the dominant
theme of the material, taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488-489.
(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper
definition of obscenity. Pp. 354 U. S. 489-490.
5. When applied according to the proper standard for judging obscenity, 18 U.S.C. 1461, which
makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other
publication of an indecent character," does not (1) violate the freedom of speech or press
guaranteed by the First Amendment, or (2) violate the constitutional requirements of due
process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S.
491-492.
6. When applied according to the proper standard for judging obscenity, 311 of West's
California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to
advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press
guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the
constitutional requirements of due process by failing to provide reasonably ascertainable standards
of guilt. Pp. 354 U. S. 491-492.
7. The federal obscenity statute, 18 U.S.C. 1461, punishing the use of the mails for obscene
material, is a proper exercise of the postal power delegated to Congress by Art. I, 8, cl. 7,
and it does not unconstitutionally encroach upon the powers reserved to the States by the
Ninth and Tenth Amendments. Pp. 354 U. S. 492-493.
8. The California obscenity statute here involved is not repugnant to Art. I, 8, cl. 7, since it does not
impose a burden upon, or interfere with, the federal postal functions -- even when applied to a mailorder business. Pp. 354 U. S. 493-494.
237 F.2d 796, affirmed.
138 Cal.App.2d Supp. 909, 292 P.2d 90, affirmed.
Page 354 U. S. 479

Miller v. California
413 U.S. 15
Miller v. California (No. 70-73)
Argued: January 18-19, 1972
Decided: June 21, 1973
Syllabus
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California
statute that approximately incorporated the obscenity test formulated in Memoirs v.
Massachusetts, 383 U.S. 413, 418 (plurality opinion). The trial court instructed the jury to evaluate
the materials by the contemporary community standards of California. Appellant's conviction was
affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth v. United States,354 U.S. 476,
reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to
the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined
by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or
scientific value. Pp. 23-24.
2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying
contemporary community standards" would find that the work, taken as a whole, appeals to the
prurient interest, Roth, supra, at 489, (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. If a state obscenity
law is thus limited, First Amendment values are adequately protected by ultimate independent
appellate review of constitutional claims when necessary. Pp. 24-25.
3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a
constitutional standard. Pp. 24-25.
4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by
the standard that prevails in the forum community, and need not employ a "national standard." Pp.
30-34.
Vacated and remanded. [p16]
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 37. BRENNAN, J., filed a
dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 47.
TOP
Opinion
BURGER, C.J., Opinion of the Court
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a
reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the
intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (concurring
and dissenting).
Appellant conducted a mass mailing campaign to advertise the sale of illustrated books,
euphemistically called "adult" material. After a jury trial, he was convicted of violating California
Penal Code 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [n1] [p17] and the
Appellate Department, Superior Court of California, County of Orange, summarily affirmed the
judgment without opinion. Appellant's conviction was specifically [p18] based on his conduct in
causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed
to a restaurant in Newport Beach, California. The envelope was opened by the manager of the
restaurant and his mother. They had not requested the brochures; they complained to the police.
The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated,"
and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the
brochures contain some descriptive printed material, primarily they consist of pictures and drawings
very explicitly depicting men and women in groups of two or more engaging in a variety of sexual
activities, with genitals often prominently displayed.
I
This case involves the application of a State's criminal obscenity statute to a situation in which
sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who
had in no way indicated any desire to receive such materials. This Court has recognized that the
States have a legitimate interest in prohibiting dissemination or exhibition of obscene
material [n2] [p19] when the mode of dissemination carries with it a significant danger of offending
the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557,
567 (1969); Ginsberg v. New York, 390 U.S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas,
supra, at 690; Redrup v. New York, 386 U.S. 767, 769 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195
(1964). See Rabe v. Washington, 405 U.S. 313, 317 (1972) (BURGER, C.J., concurring); United States
v. Reidel, 402 U.S. 351, 360-362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495, 502 (1952);Breard v. Alexandria, 341 U.S. 622, 644 645 (1951); Kovacs v. Cooper, 336 U.S.
77, 88-89 (1949); Prince v. Massachusetts, 321 U.S. 158, 169-170 (1944). Cf. Butler v. Michigan, 32
U.S. 380, 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 464-465 (1952) It is in this
context that we are called [p20] on to define the standards which must be used to identify obscene
material that a State may regulate without infringing on the First Amendment as applicable to the
States through the Fourteenth Amendment.
The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the
Court now undertakes to formulate standards more concrete than those in the past, it is useful for us
to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity
decisions. In Roth v. United States,354 U.S. 476 (1957), the Court sustained a conviction under a
federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to
that holding was the Court's rejection of the claim that obscene materials were protected by the First
Amendment. Five Justices joined in the opinion stating:

All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial
ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First
Amendment] guaranties, unless excludable because they encroach upon the limited area of more
important interests. But implicit in the history of the First Amendment is the rejection of obscenity as
utterly without redeeming social importance. . . . This is the same judgment expressed by this Court
in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572:
. . . There are certain well defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These include the
lewd and obscene. . . . It has been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social [p21] 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. . . .
[Emphasis by Court in Roth opinion.]
We hold that obscenity is not within the area of constitutionally protected speech or press.
354 U.S. at 48 85 (footnotes omitted).
Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away
from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of
obscenity. The plurality held that, under the Rothdefinition, as elaborated in subsequent
cases, three elements must coalesce: it must be established that (a) the dominant theme
of the material, taken as a whole, appeals to a prurient interest in sex; (b) the material is
patently offensive because it affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) the material is utterly without
redeeming social value.
Id. at 418. The sharpness of the break with Roth, represented by the third element of
the Memoirs test and emphasized by MR. JUSTICE WHITE's dissent, id. at 460-462, was further
underscored when the Memoirs plurality went on to state:
The Supreme Judicial Court erred in holding that a book need not be "unqualifiedly worthless before it
can be deemed obscene." A book cannot be proscribed unless it is found to be utterly without
redeeming social value.
Id. at 419 (emphasis in original).
While Roth presumed
"obscenity"
to
be
"utterly
without
redeeming
social
importance,"Memoirs required [p22] that to prove obscenity it must be affirmatively established that
the material is "utterly without redeeming social value." Thus, even as they repeated the words
of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to
prove a negative, i.e., that the material was "utterlywithout redeeming social value" -- a burden
virtually impossible to discharge under our criminal standards of proof. Such considerations caused
Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at
all. See Memoirs v. Massachusetts, id. at 459 (Harlan, J., dissenting). See also id. at 461 (WHITE, J.,
dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).
Apart from the initial formulation in the Roth case, no majority of the Court has at any given time
been able to agree on a standard to determine what constitutes obscene, pornographic material
subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 770771. We have seen "a variety of views among the members of the Court unmatched in any other
course of constitutional adjudication."Interstate Circuit, Inc. v. Dallas, 390 U.S. at 704-705 (Harlan, J.,
concurring and dissenting) (footnote omitted). [n3] This is not remarkable, for in the area [p23] of
freedom of speech and press the courts must always remain sensitive to any infringement on
genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are
few eternal verities.
The case we now review was tried on the theory that the California Penal Code 311 approximately
incorporates the three-stage Memoirs test, supra. But now the Memoirstest has been abandoned as
unworkable by its author, [n4] and no Member of the Court today supports the Memoirs formulation.
II
This much has been categorically settled by the Court, that obscene material is unprotected by the
First Amendment. Kois v. Wisconsin, 408 U.S. 229 (1972); United States v. Reidel, 402 U.S. at
354; Roth v. United States, supra, at 485. [n5] "The First and Fourteenth Amendments have never been
treated as absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 642, and cases cited. See
Times Film Corp. v. Chicago, 365 U.S. 43, 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at
502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of
expression. State statutes designed to regulate obscene materials must be [p24] carefully
limited. See Interstate Circuit, Inc. v. Dallas, supra, at 682-685. As a result, we now confine the
permissible scope of such regulation to works which depict or describe sexual conduct. That conduct
must be specifically defined by the applicable state law, as written or authoritatively construed. [n6] A
state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in
sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not
have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying
contemporary community standards" would find that the work, taken as a whole, appeals to the
prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (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. We do not adopt as a constitutional standard the "utterly
without redeeming social value" test of Memoirs v. Massachusetts, [p25] 383 U.S. at 419; that
concept has never commanded the adherence of more than three Justices at one time. [n7] See
supra at 21. If a state law that regulates obscene material is thus limited, as written or construed, the
First Amendment values applicable to the States through the Fourteenth Amendment are adequately
protected by the ultimate power of appellate courts to conduct an independent review of
constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v.
Massachusetts, supra, at 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan,
J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285 (1964); Roth v. United States,
supra, at 497-498 (Harlan, J., concurring and dissenting).
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:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted,
actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of
public accommodation any more than live sex and nudity can [p26] be exhibited or sold without limit
in such public places. [n8] At a minimum, prurient, patently offensive depiction or description of sexual
conduct must have serious literary, artistic, political, or scientific value to merit First Amendment
protection. See Kois v. Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thornhill v.
Alabama, 310 U.S. 88, 101-102 (1940). For example, medical books for the education of physicians
and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In
resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury
system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence,
and other protective features provide, as we do with rape, murder, and a host of other offenses
against society and its individual members. [n9]
MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United
States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United [p27]States, 383 U.S. 463 (1966), Mishkin
v. New York, 383 U.S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former
position and now maintains that no formulation of this Court, the Congress, or the States can
adequately distinguish obscene material unprotected by the First Amendment from protected
expression, Paris Adult Theatre I v. Slaton, post, p. 73 (BRENNAN, J., dissenting). Paradoxically, MR.
JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid
exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of
how the division between protected and nonprotected materials may be drawn with greater precision
for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he
indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one
month past the state law age of majority and a willing "juvenile" one month younger.
Under the holdings announced today, 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 specifically defined by the regulating state law, as written or construed. We are satisfied that
these specific prerequisites will provide fair notice to a dealer in such materials that his public and
commercial activities may bring prosecution. See Roth v. United States, supra, at 491-492. Cf.
Ginsberg v. New York,390 U.S. at 643. [n10] If [p28] the inability to define regulated materials with
ultimate, god-like precision altogether removes the power of the States or the Congress to regulate,
then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the
consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS'
position, see United States v. Thirty-seven Photographs, 402 U.S. 363, 379-380 (1971) (Black, J.,
joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and
DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black, J., joined by DOUGLAS, J.,
concurring); Roth, supra, at 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE
DOUGLAS now stands alone.
MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view.
Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that
has been placed upon this Court," he quite rightly remarks that the examination of contested
materials "is hardly a source of edification to the members of this Court." Paris Adult [p29] Theatre I
v. Slaton, post, at 92, 93. He also notes, and we agree, that "uncertainty of the standards creates a
continuing source of tension between state and federal courts. . . ."
The problem is . . . that one cannot say with certainty that material is obscene until at least five
members of this Court, applying inevitably obscure standards, have pronounced it so.
Id. at 93, 92.
It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper
standards for testing obscenity has placed a strain on both state and federal courts. But today, for
the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete
guidelines to isolate "hard core" pornography from expression protected by the First Amendment.
Now we may abandon the casual practice of Redrup v. New York, 386 U.S. 767 (1967), and attempt to
provide positive guidance to federal and state courts alike.
This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt
a convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment -because it will lighten our burdens. [n11] "Such an abnegation of judicial supervision in this field would
be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at
187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts"
by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which
they have enjoyed and exercised continuously from before the adoption of the First Amendment to
this day. See Roth v. United States, supra, at 482-485.
Our duty admits of no "substitute for facing up [p30] to the tough individual problems of
constitutional judgment involved in every obscenity case." [Roth v. United States, supra, at 498]; see
Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 (opinion of Harlan, J.) [footnote omitted].
Jacobellis v. Ohio, supra, at 188 (opinion of BRENNAN, J.).
III
Under a National Constitution, fundamental First Amendment limitations on the powers of the States
do not vary from community to community, but this does not mean that there are, or should or can
be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is
"patently offensive." These are essentially questions of fact, and our Nation is simply too big and too
diverse for this Court to reasonably expect that such standards could be articulated for all 50 States
in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are
asked to decide whether "the average person, applying contemporary community standards" would
consider certain materials "prurient," it would be unrealistic to require that the answer be based on
some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in
criminal prosecutions, has historically permitted triers of fact to draw on the standards of their

community, guided always by limiting instructions on the law. To require a State to structure
obscenity proceedings around evidence of a national "community standard" would be an exercise in
futility.
As noted before, this case was tried on the theory that the California obscenity statute sought to
incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection
enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state
prosecution under the controlling case [p31] law. The jury, however, was explicitly instructed that, in
determining whether the "dominant theme of the material as a whole . . . appeals to the prurient
interest," and, in determining whether the material "goes substantially beyond customary limits of
candor and affronts contemporary community standards of decency," it was to apply "contemporary
community standards of the State of California."
During the trial, both the prosecution and the defense assumed that the relevant "community
standards" in making the factual determination of obscenity were those of the State of California, not
some hypothetical standard of the entire United States of America. Defense counsel at trial never
objected to the testimony of the State's expert on community standards [n12] or to the instructions of
the trial judge on "state-wide" standards. On appeal to the Appellate Department, Superior Court of
California, County of Orange, appellant for the first time contended that application of state, rather
than national, standards violated the First and Fourteenth Amendments.
We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the
trial court's charge that the jury consider state community standards, were constitutional errors.
Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable
"national standards" when attempting to determine whether certain materials are obscene as a
matter [p32] of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v.
Ohio, supra, at 200:
It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to
"community standards," it meant community standards -- not a national standard, as is sometimes
argued. I believe that there is no provable "national standard." . . . At all events, this Court has not
been able to enunciate one, and it would be unreasonable to expect local courts to divine one.
It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the
people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or
New York City. [n13] [p33] See Hoyt v. Minnesota,399 U.S. at 524-525 (1970) (BLACKMUN, J.,
dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan,
J., dissenting); Cain v. Kentucky, 397 U.S. 319 (1970) (BURGER, C.J., dissenting); id. at 319-320
(Harlan, J., dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in
The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also
Memoirs v. Massachusetts, 383 U.S. at 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 203204 (Harlan, J., dissenting); Roth v. United States, supra, at 505-506 (Harlan, J., concurring and
dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be
strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New
York, 383 U.S. at 508-509, the primary concern with requiring a jury to apply the standard of "the
average person, applying contemporary community standards" is to be certain that, so far as
material is not aimed at a deviant group, it will be judged by its impact on an average person, rather
than a particularly susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v.
United States, supra, at 489.Cf. the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360.
We hold that the requirement that the jury evaluate the materials with reference to
"contemporary[p34] standards of the State of California" serves this protective purpose and is
constitutionally adequate. [n14]
IV
The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust
exchange of ideas and political debate with commercial exploitation of obscene material demeans
the grand conception of the First Amendment and its high purposes in the historic struggle for
freedom. It is a "misuse of the great guarantees of free speech and free press. . . ." Breard v.
Alexandria, 341 U.S. at 645. The First Amendment protects works which, taken as a whole, have
serious literary, artistic, political, or scientific value, regardless of whether the government or a
majority of the people approve of the ideas these works represent.
The protection given speech and press was fashioned to assure unfettered interchange of ideas for
the bringing about of [p35] political and social changes desired by the people,
Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 230232; Thornhill v. Alabama, 310 U.S. at 101-102. But the public portrayal of hard-core sexual conduct
for its own sake, and for the ensuing commercial gain, is a different matter. [n15]
There is no evidence, empirical or historical, that the stern 19th century American censorship of
public distribution and display of material relating to sex, see Roth v. United States, supra, at 482485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas.
On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore
Roosevelt was an "extraordinarily vigorous period" not just in economics and politics, but in belles
lettres and in "the outlying fields of social and political philosophies." [n16] We do not see the harsh
hand[p36] of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political
liberty lurking in every state regulation of commercial exploitation of human interest in sex.
MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever
be forestalled." Paris Adult Theatre I v. Slaton, post, at 110 (BRENNAN, J., dissenting). These doleful
anticipations assume that courts cannot distinguish commerce in ideas, protected by the First
Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hardcore pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE
BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed
even more rigid enforcement techniques may be called for with such dichotomy of regulation.See
Interstate Circuit, Inc. v. Dallas, 390 U.S. at 690. [n17] One can concede that the "sexual revolution" of
recent years may have had useful byproducts in striking layers of prudery from a subject long
irrationally kept from needed ventilation. But it does not follow that no regulation of patently
offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated
access to heroin because it is a derivative of medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First
Amendment; (b) hold that such material can be regulated by the States, subject to the specific
safeguards enunciated [p37] above, without a showing that the material is "utterly without
redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary
community standards," see Kois v. Wisconsin, supra, at 230, and Roth v. United States, supra, at 489,
not "national standards." The judgment of the Appellate Department of the Superior Court, Orange
County, California, is vacated and the case remanded to that court for further proceedings not
inconsistent with the First Amendment standards established by this opinion. See United States v. 12
200-ft. Reels of Film, post at 130 n. 7.
Vacated and remanded.
1.
At the time of the commission of the alleged offense, which was prior to June 25, 1969, 311.2(a)
and 311 of the California Penal Code read in relevant part:
311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or
possessing within state
(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into
this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or
offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute,
any obscene matter is guilty of a misdemeanor. . . .
311. Definitions
As used in this chapter:
(a) "Obscene" means that to the average person, applying contemporary standards, the predominant
appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in
nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description
or representation of such matters and is matter which is utterly without redeeming social
importance.
(b) "Matter" means any book, magazine, newspaper, or other printed or written material or any
picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other
figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other
articles, equipment, machines or materials.
(c) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.
(d) "Distribute" means to transfer possession of, whether with or without consideration.
(e) "Knowingly" means having knowledge that the matter is obscene.
Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as
follows:
(e) "Knowingly" means being aware of the character of the matter.
Cal. Amended Stats.1969, c. 249, 1, p. 598. Despite appellant's contentions to the contrary, the
record indicates that the new 311(e) was not applied ex post facto to his case, but only the old
311(e) as construed by state decisions prior to the commission of the alleged offense. See People v.
Pinkus, 256 Cal.App.2d 941, 948-950, 63 Cal.Rptr. 680, 685-686 (App. Dept., Superior Ct., Los
Angeles, 1967); People v. Campise, 242 Cal.App.2d 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept.,
Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U.S. 347 (1964). Nor did
311.2, supra, as applied, create any "direct, immediate burden on the performance of the postal
functions," or infringe on congressional commerce powers under Art. I, 8, cl. 3. Roth v. United
States, 354 U.S. 476, 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U.S. 88, 96 (1945). See
also Mishkin v. New York, 383 U.S. 502, 506 (1966); Smith v. California, 361 U.S. 147, 150-152 (1959).
2.
This Court has defined "obscene material" as "material which deals with sex in a manner
appealing to prurient interest," Roth v. United States, supra, at 487, but
the Rothdefinition does not reflect the precise meaning of "obscene" as traditionally used
in the English language. Derived from the Latin obscaenus ob, to, plus caenum, filth,
"obscene" is defined in the Webster's Third New International Dictionary (Unabridged
1969) as
1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions
of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal
or principle.
The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to
taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome."
The material we are discussing in this case is more accurately defined as "pornography" or
"pornographic material." "Pornography" derives from the Greek (porne, harlot, and graphos,
writing). The word now means
1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of
licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual
excitement.
Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a
sub-group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used
in our language. We note, therefore, that the words "obscene material," as used in this
case, have a specific judicial meaning which derives from the Roth case, i.e., obscene
material "which deals with sex." Roth, supra, at 487.See also ALI Model Penal Code 251.4(1)
"Obscene Defined." (Official Draft 1962.)
3.
In the absence of a majority view, this Court was compelled to embark on the practice of summarily
reversing convictions for the dissemination of materials that, at least five members of the Court,
applying their separate tests, found to be protected by the First Amendment. Redrup v. New
York, 386 U.S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity
of circumstances, however, no justification has ever been offered in support of
the Redrup "policy." See Walker v. Ohio, 398 U.S. at 434-435 (1970) (dissenting opinions of BURGER,
C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of
censorship for the 50 States, subjectively judging each piece of material brought before us.
4.
See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 73.

5.
As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U.S. 184, 200 (1964):
For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I
believe that we should try to live with it -- at least until a more satisfactory definition is evolved. No
government -- be it federal, state, or local -- should be forced to choose between repressing all
material, including that within the realm of decency, and allowing unrestrained license to publish any
material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and
we have attempted in the Roth case to provide such a rule.
6.
See, e.g., Oregon Laws 1971, c. 743, Art. 29, 255-262, and Hawaii Penal Code, Tit. 37, 12101216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed
at depiction of defined physical conduct, as opposed to expression. Other state formulations could be
equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to
be understood as approving of them in all other respects nor as establishing their limits as the extent
of state power.
We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now
enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter,
may well be adequate. See United States v. 12 200-ft. Reel of Film, post, at 130 n. 7.
7.
"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise
obscene publication. . . ." Kois v. Wisconsin, 408 U.S. 229, 231 (1972). See Memoirs v.
Massachusetts, 383 U.S. 413, 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional
standard, the ambiguous concept of "social importance." See id. at 462 (WHITE, J., dissenting).
8.
Although we are not presented here with the problem of regulating lewd public conduct itself, the
States have greater power to regulate nonverbal, physical conduct than to suppress depictions or
descriptions of the same behavior. In United States v. O'Brien,391 U.S. 367, 377 (1968), a case not
dealing with obscenity, the Court held a State regulation of conduct which itself embodied both
speech and nonspeech elements to be
sufficiently justified if . . . it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of
that interest.
See California v. LaRue, 409 U.S. 109, 117-118 (1972).
9.
The mere fact juries may reach different conclusions as to the same material does not mean that
constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 492 n.
30,
it is common experience that different juries may reach different results under any criminal statute.
That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165
U.S. 486, 499-500.
10.
As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 491-492:
Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote
omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the
requirements of due process. ". . . [T]he Constitution does not require impossible standards;" all that
is required is that the language "conveys sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U.S. 1, 78. These words, applied according to the proper standard for judging obscenity, already discussed,
give adequate warning of the conduct proscribed and mark
. . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there
may be marginal cases in which it is difficult to determine the side of the line on which a particular
fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal
offense. . . .
Id. at 7. See also United States v. Harriss, 347 U.S. 612, 624, n. 15; Boyce Motor Lines, Inc. v. United
States, 342 U.S. 337, 340; United States v. Ragen, 314 U.S. 513, 523-524; United States v.
Wurzbach, 280 U.S. 396; Hygrade Provision Co. v. Sherman, 266 U.S. 497; Fox v. Washington, 236
U.S. 273; Nash v. United States, 229 U.S. 373.
11.
We must note, in addition, that any assumption concerning the relative burdens of the past and the
probable burden under the standards now adopted is pure speculation.
12.
The record simply does not support appellant's contention, belatedly raised on appeal, that the
State's expert was unqualified to give evidence on California "community standards." The expert, a
police officer with many years of specialization in obscenity offenses, had conducted an extensive
state-wide survey and had given expert evidence on 26 occasions in the year prior to this trial.
Allowing such expert testimony was certainly not constitutional error. Cf. United States v.
Augenblick, 393 U.S. 348, 356 (1969).
13.
In Jacobellis v. Ohio, 378 U.S. 184 (1964), two Justices argued that application of "local" community
standards would run the risk of preventing dissemination of materials in some places because sellers
would be unwilling to risk criminal conviction by testing variations in standards from place to
place. Id. at 193-195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards,
however, necessarily implies that materials found tolerable in some places, but not under the
"national" criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of
danger to free expression, the potential for suppression seems at least as great in the application of
a single nationwide standard as in allowing distribution in accordance with local tastes, a point which
Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S. at 506.
Appellant also argues that adherence to a "national standard" is necessary "in order to avoid
unconscionable burdens on the free flow of interstate commerce." As noted supraat 18 n. 1, the
application of domestic state police powers in this case did not intrude on any congressional powers

under Art. I, 8, cl. 3, for there is no indication that appellant's materials were ever distributed
interstate. Appellant's argument would appear without substance in any event. Obscene material
may be validly regulated by a State in the exercise of its traditional local power to protect the general
welfare of its population despite some possible incidental effect on the flow of such materials across
state lines. See, e.g., Head v. New Mexico Board, 374 U.S. 424 (1963); Huron Portland Cement Co. v.
Detroit, 362 U.S. 440 (1960); Breard v. Alexandria, 341 U.S. 622(1951); H. P. Hood & Sons v. Du
Mond, 336 U.S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945); Baldwin v. G.A.F.
Seelig, Inc., 294 U.S. 511 (1935);Sligh v. Kirkwood, 237 U.S. 52 (1915).
14.
Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a
Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same
brochures, but apparently alleging exposures at a different time in a different setting. Appellant
argues that, once material has been found not to be obscene in one proceeding, the State is
"collaterally estopped" from ever alleging it to be obscene in a different proceeding. It is not clear
from the record that appellant properly raised this issue, better regarded as a question of procedural
due process than a "double jeopardy" claim, in the state courts below. Appellant failed to address any
portion of his brief on the merits to this issue, and appellee contends that the question was waived
under California law because it was improperly pleaded at trial. Nor is it totally clear from the record
before us what collateral effect the pretrial dismissal might have under state law. The dismissal was
based, at least in part, on a failure of the prosecution to present affirmative evidence required by
state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is
best left to the California courts for further consideration on remand. The issue is not, in any event, a
proper subject for appeal. See Mishkin v. New York, 383 U.S. 502, 512-514 (1966).
15.
In the apt words of Mr. Chief Justice Warren, appellant in this case was
plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with
prurient effect. I believe that the State and Federal Governments can constitutionally punish such
conduct. That is all that these cases present to us, and that is all we need to decide.
Roth v. United States, supra, at 496 (concurring opinion).
16.
See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the
19th century, Parrington observed
A new age had come and other dreams -- the age and the dreams of a middle-class sovereignty. . . .
From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of
realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other
philosophies to take the place of those which had gone down in the fierce battles of the Civil War.
Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic
197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White
ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin,
Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952).
17.
[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may
regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but
which a State clearly could not regulate as to adults.Ginsberg v. New York, . . . [ 390 U.S. 629 (1968)].
Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 690 (1968) (footnote omitted).

Reno v. American Civil Liberties Union

521 U.S. 844 (1997)
Annotate this Case
Syllabus
Case
OCTOBER TERM, 1996
Syllabus
RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES UNION ET
AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
No. 96-511. Argued March 19, 1997-Decided June 26, 1997
Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from
harmful material on the Internet, an international network of interconnected computers that enables
millions of people to communicate with one another in "cyberspace" and to access vast amounts of
information from around the world. Title 47 U. S. C. 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes
the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of
age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any
message "that, in context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or organs." Mfirmative defenses
are provided for those who take "good faith, ... effective ... actions" to restrict access by minors to
the prohibited communications, 223(e)(5)(A), and those who restrict such access by requiring
certain designated forms of age proof, such as a verified credit card or an adult identification
number, 223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of 223(a)(I)
and 223(d). Mter making extensive findings of fact, a three-judge District Court convened pursuant to
the Act entered a preliminary injunction against enforcement of both challenged provisions. The
court's judgment enjoins the Government from enforcing 223(a)(I)(B)'s prohibitions insofar as they
relate to "indecent" communications, but expressly preserves the Government's right to investigate
and prosecute the obscenity or child pornography activities prohibited therein. The injunction against
enforcement of 223(d) is unqualified because that section contains no separate reference to
obscenity or child pornography. The Government appealed to this Court under the Act's special
review provisions, arguing that the District Court erred in holding that the CDA violated both the First
Amendment because it is overbroad and the Fifth Amendment because it is vague.
Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the
freedom of speech" protected by the First Amendment. Pp. 864-885.
845
(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the
judgment should be affirmed without reaching the Fifth Amendment issue. P. 864.
(b) A close look at the precedents relied on by the GovernmentGinsberg v. New York, 390 U. S.
629; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the
various laws and orders upheld in those cases in many ways, including that it does not allow parents
to consent to their children's use of restricted materials; is not limited to commercial transactions;
fails to provide any definition of "indecent" and omits any requirement that "patently offensive"
material lack socially redeeming value; neither limits its broad categorical prohibitions to particular
times nor bases them on an evaluation by an agency familiar with the medium's unique
characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment
protection; and cannot be properly analyzed as a form of time, place, and manner regulation because
it is a content-based blanket restriction on speech. These precedents, then, do not require the Court
to uphold the CDA and are fully consistent with the application of the most stringent review of its
provisions. Pp. 864-868.
(c) The special factors recognized in some of the Court's cases as justifying regulation of the
broadcast media-the history of extensive Government regulation of broadcasting, see, e. g., Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of available frequencies at its inception,
see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature,
see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128-are not present in cyberspace.
Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be
applied to the Internet. Pp.868-870.
(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage render it problematic for First Amendment
purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will
provoke uncertainty among speakers about how the two standards relate to each other and just what
they mean. The vagueness of such a content-based regulation, see, e. g., Gentile v. State Bar of
Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e. g.,
Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because of its obvious
chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from
vagueness by the fact that its "patently offensive" stand846
ard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S.
15,24. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term
by requiring that the proscribed material be "specifically defined by the applicable state law." In
addition, the Miller definition applies only to "sexual conduct," whereas the CDA prohibition extends
also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller'sother
two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a
definition including three limitations is not vague, it does not follow that one of those limitations,
standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been
carefully tailored to the congressional goal of protecting minors from potentially harmful materials.
Pp.870-874.

(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the
content of speech. Although the Government has an interest in protecting children from potentially
harmful materials, see, e. g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by
suppressing a large amount of speech that adults have a constitutional right to send and receive,
see, e. g., Sable, 492 U. S., at 126. Its breadth is wholly unprecedented. The CDA's burden on adult
speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the
Act's legitimate purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the
other hand, the District Court found that currently available user-based software suggests that a
reasonably effective method by which parents can prevent their children from accessing material
which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in
this Court referred to possible alternatives such as requiring that indecent material be "tagged" to
facilitate parental control, making exceptions for messages with artistic or educational value,
providing some tolerance for parental choice, and regulating some portions of the Internet differently
from others. Particularly in the light of the absence of any detailed congressional findings, or even
hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly
tailored. Pp.874-879.
(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are
rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative
channels" of communication is unpersuasive because the CDA regulates speech on the basis of its
content, so that a "time, place, and manner" analysis is inapplicable. See, e. g., Consolidated Edison
Co. of N. Y. v.
847
Public Servo Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA's "knowledge"
and "specific person" requirements significantly restrict its permissible application to
communications to persons the sender knows to be under 18 is untenable, given that most Internet
forums are open to all comers and that even the strongest reading of the "specific person"
requirement would confer broad powers of censorship, in the form of a "heckler's veto," upon any
opponent of indecent speech. Finally, there is no textual support for the submission that material
having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's
prohibitions. Pp. 879-881.
(g) The 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA.
The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging"
their indecent communications in a way that would indicate their contents, thus permitting recipients
to block their reception with appropriate software, is illusory, given the requirement that such action
be "effective": The proposed screening software does not currently exist, but, even if it did, there
would be no way of knowing whether a potential recipient would actually block the encoded material.
The Government also failed to prove that 223(b)(5)'s verification defense would significantly reduce
the CDA's heavy burden on adult speech. Although such verification is actually being used by some
commercial providers of sexually explicit material, the District Court's findings indicate that it is not
economically feasible for most noncommercial speakers. Pp.881-882.
(h) The Government's argument that this Court should preserve the CDA's constitutionality by
honoring its severability clause, 608, and by construing nonseverable terms narrowly, is acceptable
in only one respect. Because obscene speech may be banned totally, see Miller, 413 U. S., at 18, and
223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for
"indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of
223(a) standing. Pp. 882-885.
(i) The Government's argument that its "significant" interest in fostering the Internet's growth
provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive.
The dramatic expansion of this new forum contradicts the factual basis underlying this contention:
that the unregulated availability of "indecent" and "patently offensive" material is driving people
away from the Internet. P. 885.
929 F. Supp. 824, affirmed.
848
STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS,
GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 886.
Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were Acting Solicitor
General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Irving L.
Gornstein, Barbara
Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees American
Library Association et al. were Ann M. Kappler, Paul M. Smith, Donald B. Verrilli, Jr., John B. Morris, Jr.,
Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James Wheaton, Jerry Berman, Elliot M. Mincberg,
Lawrence S. Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J. Halpert, Michael Traynor,
Robert P. Taylor, Rene Milam, Marc Jacobson, Bruce W Sanford, and Henry S. Hoberman. Christopher
A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan Presser, David L. Sobel, Marc
Rotenberg, and Roger Evans filed a brief for appellees American Civil Liberties Union Foundation et
al. *
*Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et al. by Bruce A.
Taylor and Cathleen A. Cleaver; for Enough is Enough et al. by Ronald D. Maines; for the Family Life
Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr.,
Colby M. May, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for Morality in Media,
Inc., by Paul J. McGeady and Robert W Peters; and for James J. Clancy by Mr. Clancy, pro se, and Carol
A. Clancy.
Briefs of amici curiae urging affirmance were filed for the American Association of University
Professors et al. by James D. Crawford, Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault James,
and Joseph T. Lukens; for Apollomedia Corporation et al. by William Bennett Turner; for the
Association of National Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G. Brody, Mary
Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause; for the Chamber of Commerce of the United
States by Clifford M. Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and

849
JUSTICE STEVENS delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent"
and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and
importance of the congressional goal of protecting children from harmful materials, we agree with
the three-judge District Court that the statute abridges "the freedom of speech" protected by the
First Amendment.1
I
The District Court made extensive findings of fact, most of which were based on a detailed stipulation
prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa. 1996).2 The findings describe the
character and the dimensions of the Internet, the availability of sexually explicit material in that
medium, and the problems confronting age verification for recipients of Internet communications.
Because those findings provide the underpinnings for the legal issues, we begin with a summary of
the undisputed facts.
The Internet
The Internet is an international network of interconnected computers. It is the outgrowth of what
began in 1969 as a
Robin S. Conrad; for Feminists for Free Expression by Barbara M cDowell; for the National Association
of Broadcasters et al. by Floyd Abrams, Jack N. Goodman, and Susanna M. Lowy; for Playboy
Enterprises, Inc., by Robert Corn-Revere and Burton Joseph; for the Reporters Committee for Freedom
of the Press et al. by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al. by Jamie B. W
Stecher; and for Volunteer Lawyers for the Arts et al. by Daniel H. Weiner.
Raphael Winick filed a brief of amicus curiae for the Speech Communication Association.
1 "Congress shall make no law ... abridging the freedom of speech."
2 The Court made 410 findings, including 356 paragraphs of the parties' stipulation and 54 findings
based on evidence received in open court. See 929 F. Supp., at 830, n. 9, 842, n. 15.
850
military program called "ARPANET," 3 which was designed to enable computers operated by the
military, defense contractors, and universities conducting defense-related research to communicate
with one another by redundant channels even if some portions of the network were damaged in a
war. While the ARPANET no longer exists, it provided an example for the development of a number of
civilian networks that, eventually linking with each other, now enable tens of millions of people to
communicate with one another and to access vast amounts of information from around the world.
The Internet is "a unique and wholly new medium of worldwide human communication."4
The Internet has experienced "extraordinary growth." 5 The number of "host" computers-those that
store information and relay communications-increased from about 300 in 1981 to approximately
9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United
States. About 40 million people used the Internet at the time of trial, a number that is expected to
mushroom to 200 million by 1999.
Individuals can obtain access to the Internet from many different sources, generally hosts themselves
or entities with a host affiliation. Most colleges and universities provide access for their students and
faculty; many corporations provide their employees with access through an office network; many
communities and local libraries provide free access; and an increasing number of storefront
"computer coffee shops" provide access for a small hourly fee. Several major national "online
services" such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to
their own extensive proprietary networks as well as a link to the much larger resources of the
Internet. These com3 An acronym for the network developed by the Advanced Research Project Agency.
4Id., at 844 (finding 81). 5Id., at 831 (finding 3).
851
mercial online services had almost 12 million individual subscribers at the time of trial.
Anyone with access to the Internet may take advantage of a wide variety of communication and
information retrieval methods. These methods are constantly evolving and difficult to categorize
precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail),
automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups,"
"chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most
can transmit sound, pictures, and moving video images. Taken together, these tools constitute a
unique medium-known to its users as "cyberspace" -located in no particular geographical location
but available to anyone, anywhere in the world, with access to the Internet.
E-mail enables an individual to send an electronic message-generally akin to a note or letter-to
another individual or to a group of addressees. The message is generally stored electronically,
sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known
through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send
messages to a common e-mail address, which then forwards the message to the group's other
subscribers. Newsgroups also serve groups of regular participants, but these po stings may be read
by others as well. There are thousands of such groups, each serving to foster an exchange of
information or opinion on a particular topic running the gamut from, say, the music of Wagner to
Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted
every day. In most newsgroups, po stings are automatically purged at regular intervals. In addition to
posting a message that can be read later, two or more individuals wishing to communicate more
immediately can enter a chat room to engage in real-time dialogue-in other words, by typing
messages to one another that appear almost immediately on
852
the others' computer screens. The District Court found that at any given time "tens of thousands of
users are engaging in conversations on a huge range of subjects." 6 It is "no exaggeration to
conclude that the content on the Internet is as diverse as human thought."7
The best known category of communication over the Internet is the World Wide Web, which allows
users to search for and retrieve information stored in remote computers, as well as, in some cases, to

communicate back to designated sites. In concrete terms, the Web consists of a vast number of
documents stored in different computers all over the world. Some of these documents are simply
files containing information. However, more elaborate documents, commonly known as Web "pages,"
are also prevalent. Each has its own address-"rather like a telephone number."s Web pages
frequently contain information and sometimes allow the viewer to communicate with the page's (or
"site's") author. They generally also contain "links" to other documents created by that site's author
or to other (generally) related sites. Typically, the links are either blue or underlined text-sometimes
images.
Navigating the Web is relatively straightforward. A user may either type the address of a known page
or enter one or more keywords into a commercial "search engine" in an effort to locate sites on a
subject of interest. A particular Web page may contain the information sought by the "surfer," or,
through its links, it may be an avenue to other documents located anywhere on the Internet. Users
generally explore a given Web page, or move to another, by clicking a computer "mouse" on one of
the page's icons or links. Access to most Web pages is freely available, but some allow access only to
those who have purchased the right from a
6Id., at 835 (finding 27). 7Id., at 842 (finding 74). 8Id., at 836 (finding 36).
853
commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library
including millions of readily available and indexed publications and a sprawling mall offering goods
and services.
From the publishers' point of view, it constitutes a vast platform from which to address and hear from
a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or
organization with a computer connected to the Internet can "publish" information. Publishers include
government agencies, educational institutions, commercial entities, advocacy groups, and
individuals.9 Publishers may either make their material available to the entire pool of Internet users,
or confine access to a selected group, such as those willing to pay for the privilege. "No single
organization controls any membership in the Web, nor is there any single centralized point from
which individual Web sites or services can be blocked from the Web." 10
Sexually Explicit Material
Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the
modestly titillating to the hardest-core." 11 These files are created, named, and posted in the same
manner as material that is not sexually explicit, and may be accessed either deliberately or
unintentionally during the course of an imprecise search. "Once a provider posts its content on the
Internet, it cannot prevent that content from entering any community." 12 Thus, for example,
9 "Web publishing is simple enough that thousands of individual users and small community
organizations are using the Web to publish their own personal 'home pages,' the equivalent of
individualized newsletters about that person or organization, which are available to everyone on the
Web." Id., at 837 (finding 42).
lId., at 838 (finding 46). 11 Id., at 844 (finding 82). 12 Ibid. (finding 86).
854
"when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and
Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City,
those images are available not only in Los Angeles, Baltimore, and New York City, but also in
Cincinnati, Mobile, or Beijing-wherever Internet users live. Similarly, the safer sex instructions that
Critical Path posts to its Web site, written in street language so that the teenage receiver can
understand them, are available not just in Philadelphia, but also in Provo and Prague." 13
Some of the communications over the Internet that originate in foreign countries are also sexually
explicit.14
Though such material is widely available, users seldom encounter such content accidentally. "A
document's title or a description of the document will usually appear before the document itself ...
and in many cases the user will receive detailed information about a site's content before he or she
need take the step to access the document. Almost all sexually explicit images are preceded by
warnings as to the content." 15 For that reason, the "odds are slim" that a user would enter a
sexually explicit site by accident.16 Unlike communications received by radio or television, "the
receipt of information on the Internet requires a series of affirmative steps more deliberate and
directed than merely turning a dial. A child requires some sophistication and some ability to read to
retrieve material and thereby to use the Internet unattended." 17
Systems have been developed to help parents control the material that may be available on a home
computer with In-ternet access. A system may either limit a computer's access to an approved list of
sources that have been identified as containing no adult material, it may block designated
inappropriate sites, or it may attempt to block messages containing identifiable objectionable
features. "Although parental control software currently can screen for certain suggestive words or for
known sexually explicit sites, it cannot now screen for sexually explicit images."18 Nevertheless, the
evidence indicates that "a reasonably effective method by which parents can prevent their children
from accessing sexually explicit and other material which parents may believe is inappropriate for
their children will soon be widely available." 19
Age Verification
The problem of age verification differs for different uses of the Internet. The District Court
categorically determined that there "is no effective way to determine the identity or the age of a user
who is accessing material through e-mail, mail exploders, newsgroups or chat rooms." 20 The
Government offered no evidence that there was a reliable way to screen recipients and participants
in such forums for
18Id., at 842 (finding 72). 19 Ibid. (finding 73).
2Id., at 845 (finding 90): "An e-mail address provides no authoritative information about the
addressee, who may use an e-mail .alias. or an anonymous remailer. There is also no universal or
reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such
listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many
instances for a sender to know if the e-mail recipient is an adult or a minor. The difficulty of e-mail
age verification is compounded for mail exploders such as listservs, which automatically send

information to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no
current technology could give a speaker assurance that only adults were listed in a particular mail
exploder's mailing list."
856
age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and
chat rooms containing discussions of art, politics, or other subjects that potentially elicit "indecent" or
"patently offensive" contributions, it would not be possible to block their access to that material and
"still allow them access to the remaining content, even if the overwhelming majority of that content
was not indecent." 21
Technology exists by which an operator of a Web site may condition access on the verification of
requested information such as a credit card number or an adult password. Credit card verification is
only feasible, however, either in connection with a commercial transaction in which the card is used,
or by payment to a verification agency. U sing credit card possession as a surrogate for proof of age
would impose costs on noncommercial Web sites that would require many of them to shut down. For
that reason, at the time of the trial, credit card verification was "effectively unavailable to a
substantial number of Internet content providers." 929 F. Supp., at 846 (finding 102). Moreover, the
imposition of such a requirement "would completely bar adults who do not have a credit card and
lack the resources to obtain one from accessing any blocked material." 22
Commercial pornographic sites that charge their users for access have assigned them passwords as
a method of age verification. The record does not contain any evidence concerning the reliability of
these technologies. Even if passwords are effective for commercial purveyors of indecent material,
the District Court found that an adult password requirement would impose significant burdens on
noncommercial sites, both because they would discourage users from accessing their sites and
because the cost of creating and
21 Ibid. (finding 93).
22Id., at 846 (finding 102).
857
maintaining such screening systems would be "beyond their reach." 23
In sum, the District Court found:
"Even if credit card verification or adult password verification were implemented, the Government
presented no testimony as to how such systems could ensure that the user of the password or credit
card is in fact over 18. The burdens imposed by credit card verification and adult password
verification systems make them effectively unavailable to a substantial number of Internet content
providers." Ibid. (finding 107).
II
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important
legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce
regulation and encourage "the rapid deployment of new telecommunications technologies." The
major components of the statute have nothing to do with the Internet; they were designed to
promote competition in the local telephone service market, the multichannel video mar23Id., at 847 (findings 104-106):
"At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape
or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to their
goals of making their materials available to a wide audience free of charge.
"There is evidence suggesting that adult users, particularly casual Web browsers, would be
discouraged from retrieving information that required use of a credit card or password. Andrew Anker
testified that HotWired has received many complaints from its members about HotWired's
registration system, which requires only that a member supply a name, e-mail address and selfcreated password. There is concern by commercial content providers that age verification
requirements would decrease advertising and revenue because advertisers depend on a
demonstration that the sites are widely available and frequently visited."
858
ket, and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the
product of extensive committee hearings and the subject of discussion in Reports prepared by
Committees of the Senate and the House of Representatives. By contrast, Title V-known as the
"Communications Decency Act of 1996" (CDA)-contains provisions that were either added in
executive committee after the hearings were concluded or as amendments offered during floor
debate on the legislation. An amendment offered in the Senate was the source of the two statutory
provisions challenged in this case.24 They are informally de24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See also id., at 15505. This
amendment, as revised, became 502 of the Telecommunications Act of 1996, 110 Stat. 133, 47 U.
S. C. 223(a)-(e) (1994 ed., Supp. II). Some Members of the House of Representatives opposed the
Exon Amendment because they thought it "possible for our parents now to child-proof the family
computer with these products available in the private sector." They also thought the Senate's
approach would "involve the Federal Government spending vast sums of money trying to define
elusive terms that are going to lead to a flood of legal challenges while our kids are unprotected."
These Members offered an amendment intended as a substitute for the Exon Amendment, but
instead enacted as an additional section of the Act entitled "Online Family Empowerment." See 110
Stat. 137, 47 U. S. C. 230 (1994 ed., Supp. II); 141 Congo Rec. 27881 (1995). No hearings were held
on the provisions that became law. See S. Rep. No. 104-23, p. 9 (1995). Mter the Senate adopted the
Exon Amendment, however, its Judiciary Committee did conduct a one-day hearing on "Cyberporn
and Children." In his opening statement at that hearing, Senator Leahy observed:
"It really struck me in your opening statement when you mentioned, Mr. Chairman, that it is the first
ever hearing, and you are absolutely right. And yet we had a major debate on the floor, passed
legislation overwhelmingly on a subject involving the Internet, legislation that could dramatically
change-some would say even wreak havoc-on the Internet. The Senate went in willy-nilly, passed
legislation, and never once had a hearing, never once had a discussion other than an hour or so on
the floor." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and the

Need for Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary,
104th Cong., 1st Sess., 7-8 (1995).
859
scribed as the "indecent transmission" provision and the "patently offensive display" provision.25
The first, 47 U. s. C. 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or
indecent messages to any recipient under 18 years of age. It provides in pertinent part:
"(a) Whoever"(1) in interstate or foreign communications"(B) by means of a telecommunications device knowingly"(i) makes, creates, or solicits, and "(ii) initiates the transmission of,
"any comment, request, suggestion, proposal, image, or other communication which is obscene or
indecent, knowing that the recipient of the communication is under 18 years of age, regardless of
whether the maker of such communication placed the call or initiated the communication;
"(2) knowingly permits any telecommunications facility under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be used for such activity,
"shall be fined under Title 18, or imprisoned not more than two years, or both."
The second provision, 223(d), prohibits the knowing sending or displaying of patently offensive
messages in a manner that is available to a person under 18 years of age. It provides:
25 Although the Government and the dissent break 223(d)(1) into two separate "patently offensive"
and "display" provisions, we follow the convention of both parties below, as well as the District
Court's order and opinion, in describing 223(d)(1) as one provision.
860
"(d) Whoever"(1) in interstate or foreign communications knowingly"(A) uses an interactive computer service to send to a specific person or persons under 18 years of
age, or
"(B) uses any interactive computer service to display in a manner available to a person under 18
years of age,
"any comment, request, suggestion, proposal, image, or other communication that, in context,
depicts or describes, in terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs, regardless of whether the user of such service
placed the call or initiated the communication; or
"(2) knowingly permits any telecommunications facility under such person's control to be used for an
activity prohibited by paragraph (1) with the intent that it be used for such activity,
"shall be fined under Title 18, or imprisoned not more than two years, or both."
The breadth of these prohibitions is qualified by two affirmative defenses. See 223(e)(5).26 One
covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access
by minors to the prohibited communications. 223(e)(5)(A). The other covers those who
26 In full, 223(e)(5) provides:
"(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or under
subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection
(a)(l)(B) of this section that a person"(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances
to restrict or prevent access by minors to a communication specified in such subsections, which may
involve any appropriate measures to restrict minors from such communications, including any
method which is feasible under available technology; or
"(B) has restricted access to such communication by requiring use of a verified credit card, debit
account, adult access code, or adult personal identification number."
861
restrict access to covered material by requiring certain designated forms of age proof, such as a
verified credit card or an adult identification number or code. 223(e)(5)(B).
III
On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs 27 filed suit
against the Attorney General of the United States and the Department of Justice challenging the
constitutionality of 223(a)(1) and 223(d). A week later, based on his conclusion that the term
"indecent" was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter
entered a temporary restraining order against enforcement of 223(a)(1)(B)(ii) insofar as it applies to
indecent communications. A second suit was then filed by 27 additional plaintiffs,2S the two cases
27 American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center;
Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social
Responsibility; N ational Writers Union; Clarinet Communications Corp.; Institute for Global
Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer
Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice
on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan
Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc.
28 American Library Association; America Online, Inc.; American Booksellers Association, Inc.;
American Booksellers Foundation for Free Expression; American Society of Newspaper Editors; Apple
Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and
Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association;
CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.;
Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software
Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation;
The Microsoft Network, L. L. C.; National Press Photographers Association; Netcom On-Line
Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services
Company; Society of Professional Journalists; and Wired Ventures, Ltd.
862

were consolidated, and a three-judge District Court was convened pursuant to 561 of the CDA.29
After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both
of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment
was unanimous.
Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the vast range
of online material covered or potentially covered by the CDA," but acknowledged that the interest
was "compelling" with respect to some of that material. 929 F. Supp., at 853. She concluded,
nonetheless, that the statute "sweeps more broadly than necessary and thereby chills the expression
of adults" and that the terms "patently offensive" and "indecent" were "inherently vague." Id., at 854.
She also determined that the affirmative defenses were not "technologically or economically feasible
for most providers," specifically considering and rejecting an argument that providers could avoid
liability by "tagging" their material in a manner that would allow potential readers to screen out
unwanted transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government's suggestion
that the scope of the statute could be narrowed by construing it to apply only to commercial
pornographers. Id., at 854-855.
Judge Buckwalter concluded that the word "indecent" in 223(a)(1)(B) and the terms "patently
offensive" and "in context" in 223(d)(1) were so vague that criminal enforcement of either section
would violate the "fundamental constitutional principle" of "simple fairness," id., at 861, and the
specific protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the
Government's argument that the challenged provisions would be applied only to "pornographic"
materials, noting that, unlike obscenity, "indecency has not been defined to exclude works of serious
literary, artistic, political or scientific value." Id., at 863.
29110 Stat. 142-143, note following 47 U. S. C. 223 (1994 ed., Supp. II).
863
Moreover, the Government's claim that the work must be considered patently offensive "in context"
was itself vague because the relevant context might "refer to, among other things, the nature of the
communication as a whole, the time of day it was conveyed, the medium used, the identity of the
speaker, or whether or not it is accompanied by appropriate warnings." Id., at 864. He believed that
the unique nature of the Internet aggravated the vagueness of the statute. Id., at 865, n. 9.
Judge Dalzell's review of "the special attributes of Internet communication" disclosed by the evidence
convinced him that the First Amendment denies Congress the power to regulate the content of
protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the
CDA would abridge significant protected speech, particularly by noncommercial speakers, while
"[p]erversely, commercial pornographers would remain relatively unaffected." Id., at 879. He
construed our cases as requiring a "medium-specific" approach to the analysis of the regulation of
mass communication, id., at 873, and concluded that the Internet-as "the most participatory form of
mass speech yet developed," id., at 883-is entitled to "the highest protection from governmental
intrusion," ibid.30
30 See also 929 F. Supp., at 877: "Four related characteristics of Internet communication have a
transcendent importance to our shared holding that the CDA is unconstitutional on its face. We
explain these characteristics in our Findings of fact above, and I only rehearse them briefly here.
First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for
both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is
available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in
the medium, and even creates a relative parity among speakers." According to Judge Dalzell, these
characteristics and the rest of the District Court's findings "lead to the conclusion that Congress may
not regulate indecency on the Internet at all." Ibid. Because appellees do not press this argument
before this Court, we do not consider it. Appellees also do not dispute that the Government generally
has a compelling interest in protecting minors from "indecent" and "patently offensive" speech.
864
The judgment of the District Court enjoins the Government from enforcing the prohibitions in 223(a)
(1)(B) insofar as they relate to "indecent" communications, but expressly preserves the
Government's right to investigate and prosecute the obscenity or child pornography activities
prohibited therein. The injunction against enforcement of 223(d)(1) and (2) is unqualified because
those provisions contain no separate reference to obscenity or child pornography.
The Government appealed under the CDA's special review provisions, 561, 110 Stat. 142-143, and
we noted probable jurisdiction, see 519 U. S. 1025 (1996). In its appeal, the Government argues that
the District Court erred in holding that the CDA violated both the First Amendment because it is
overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA
because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment
should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by reviewing
the principal authorities on which the Government relies. Then, after describing the overbreadth of
the CDA, we consider the Government's specific contentions, including its submission that we save
portions of the statute either by severance or by fashioning judicial limitations on the scope of its
coverage.
IV
In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of
our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629 (1968); (2) FCC v. Pacifica
Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). A
close look at these cases, however, raises-rather than relievesdoubts concerning the constitutionality
of the CDA.
In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors
under 17 years of age material that was considered obscene as to them even if not obscene as to
adults. We rejected the defendant's broad
865
submission that "the scope of the constitutional freedom of expression secured to a citizen to read or
see material concerned with sex cannot be made to depend on whether the citizen is an adult or a
minor." 390 U. S., at 636. In rejecting that contention, we relied not only on the State's independent

interest in the well-being of its youth, but also on our consistent recognition of the principle that "the
parents' claim to authority in their own household to direct the rearing of their children is basic in the
structure of our society." 31
In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted
in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from
purchasing the magazines for their children." Id., at 639. Under the CDA, by contrast, neither the
parents' consent-nor even their participationin the communication would avoid the application of the
statute.32 Second, the New York statute applied only to commercial transactions, id., at 647,
whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of
material that is harmful to minors with the requirement that it be "utterly without redeeming social
importance for minors." Id., at 646. The CDA fails to provide us with any definition of the term
"indecent" as used in 223(a)(1) and, importantly, omits any requirement that the "patently
offensive" material covered by 223(d) lack serious literary, artistic, political, or scientific value.
Fourth, the New York statute defined a minor as a person under the age
31390 U. S., at 639. We quoted from Prince v. Massachusetts, 321 U. S. 158, 166 (1944): "It is
cardinal with us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder."
32 Given the likelihood that many e-mail transmissions from an adult to a minor are conversations
between family members, it is therefore incorrect for the partial dissent to suggest that the
provisions of the CDA, even in this narrow area, "are no different from the law we sustained
inGinsberg." Post, at 892.
866
of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those
nearest majority.
In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that
the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had previously
been delivered to a live audience "could have been the subject of administrative sanctions." 438 U.
S., at 730 (internal quotation marks omitted). The Commission had found that the repetitive use of
certain words referring to excretory or sexual activities or organs "in an afternoon broadcast when
children are in the audience was patently offensive" and concluded that the monologue was indecent
"as broadcast." Id., at 735. The respondent did not quarrel with the finding that the afternoon
broadcast was patently offensive, but contended that it was not "indecent" within the meaning of the
relevant statutes because it contained no prurient appeal. After rejecting respondent's statutory
arguments, we confronted its two constitutional arguments: (1) that the Commission's construction
of its authority to ban indecent speech was so broad that its order had to be set aside even if the
broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First
Amendment forbade any abridgment of the right to broadcast it on the radio.
In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that
the First Amendment does not prohibit all governmental regulation that depends on the content of
speech. Id., at 742-743. Accordingly, the availability of constitutional protection for a vulgar and
offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744748. Relying on the premise that "of all forms of communication" broadcasting had received the most
limited First Amendment protection, id., at 748-749, the Court concluded that the ease with which
children may obtain access to broadcasts,
867
"coupled with the concerns recognized in Ginsberg," justified special treatment of indecent
broadcasting. Id., at 749-750.
As with the New York statute at issue in Ginsberg, there are significant differences between the order
upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been
regulating radio stations for decades, targeted a specific broadcast that represented a rather
dramatic departure from traditional program content in order to designate when-rather than whetherit would be permissible to air such a program in that particular medium. The CDA's broad categorical
prohibitions are not limited to particular times and are not dependent on any evaluation by an
agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the
Commission's declaratory order was not punitive; we expressly refused to decide whether the
indecent broadcast "would justify a criminal prosecution." 438 U. S., at 750. Finally, the Commission's
order applied to a medium which as a matter of history had "received the most limited First
Amendment protection," id., at 748, in large part because warnings could not adequately protect the
listener from unexpected program content. The Internet, however, has no comparable history.
Moreover, the District Court found that the risk of encountering indecent material by accident is
remote because a series of affirmative steps is required to access specific material.
In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential
neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but
rather at the "secondary effects" -such as crime and deteriorating property values-that these
theaters fostered: "'It is thee] secondary effect which these zoning ordinances attempt to avoid, not
the dissemination of "offensive" speech.''' 475 U. S., at 49 (quoting Young v. American Mini Theatres,
Inc., 427 U. S. 50, 71, n. 34 (1976)). According to the Government, the CDA is constitutional be868
cause it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire
universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of
"indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech. Thus,
the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed
as a form of time, place, and manner regulation." 475 U. S., at 46. See also Boos v. Barry,485 U. S.
312, 321 (1988) ("Regulations that focus on the direct impact of speech on its audience" are not
properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134 (1992)
("Listeners' reaction to speech is not a content-neutral basis for regulation").

These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the
application of the most stringent review of its provisions.
v
In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that "[e]ach
medium of expression ... may present its own problems." Thus, some of our cases have recognized
special justifications for regulation of the broadcast media that are not applicable to other speakers,
see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S.
726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the
broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at
its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and
its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).
Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have
the vast democratic forums of the Internet been subject to the type
869
of government supervision and regulation that has attended the broadcast industry.33 Moreover, the
Internet is not as "invasive" as radio or television. The District Court specifically found that
"[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's
computer screen unbidden. Users seldom encounter content 'by accident.' " 929 F. Supp., at 844
(finding 88). It also found that "[a]lmost all sexually explicit images are preceded by warnings as to
the content," and cited testimony that" 'odds are slim' that a user would come across a sexually
explicit sight by accident." Ibid.
We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a company engaged
in the business of offering sexually oriented prerecorded telephone messages (popularly known as
"dial-a-porn") challenged the constitutionality of an amendment to the Communications Act of 1934
that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone
messages. We held that the statute was constitutional insofar as it applied to obscene messages but
invalid as applied to indecent messages. In attempting to justify the complete ban and
criminalization of indecent commercial telephone messages, the Government relied
on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such
messages. We agreed that "there is a compelling interest in protecting the physical and
psychological well-being of minors" which extended to shielding them from indecent messages that
are not obscene by adult standards, 492 U. S., at
33 Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (CADC 1977) (LevanthaI, J., dissenting),
rev'd,FCC v. Pacifica Foundation, 438 U. S. 726 (1978). When Pacifica was decided, given that radio
stations were allowed to operate only pursuant to federal license, and that Congress had enacted
legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of
the radio audience might infer some sort of official or societal approval of whatever was heard over
the radio, see 556 F. 2d, at 37, n. 18. No such risk attends messages received through the Internet,
which is not supervised by any federal agency.
870
126, but distinguished our "emphatically narrow holding" in Pacifica because it did not involve a
complete ban and because it involved a different medium of communication, id., at 127. We
explained that "the dial-it medium requires the listener to take affirmative steps to receive the
communication." Id., at 127-128. "Placing a telephone call," we continued, "is not the same as
turning on a radio and being taken by surprise by an indecent message." Id., at 128.
Finally, unlike the conditions that prevailed when Congress first authorized regulation of the
broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It
provides relatively unlimited, low-cost capacity for communication of all kinds. The Government
estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to
grow to 200 million by 1999."34 This dynamic, multifaceted category of communication includes not
only traditional print and news services, but also audio, video, and still images, as well as interactive,
real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town
crier with a voice that resonates farther than it could from any soapbox. Through the use of Web
pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the
District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at
842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level
of First Amendment scrutiny that should be applied to this medium.
VI
Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage render it problematic for purposes of the First
Amendment. For instance, each of the two parts
34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)).
871
of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. s. C. 223(a)
(1994 ed., Supp. II), while the second speaks of material that "in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards, sexual or excretory
activities or organs," 223(d). Given the absence of a definition of either term,35 this difference in
language will provoke uncertainty among speakers about how the two standards relate to each
other36 and just what they mean.37 Could a speaker confidently assume that a serious discussion
about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to
our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty
undermines the likelihood that the CDA has been carefully tailored to the congressional goal of
protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a contentbased regulation of speech. The vagueness of such a regulation raises
35 "Indecent" does not benefit from any textual embellishment at all.
"Patently offensive" is qualified only to the extent that it involves "sexual or excretory activities or
organs" taken "in context" and "measured by contemporary community standards."

36 See Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) ("[W]here Congress includes
particular language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion and
exclusion" (internal quotation marks omitted)).
37 The statute does not indicate whether the "patently offensive" and "indecent" determinations
should be made with respect to minors or the population as a whole. The Government asserts that
the appropriate standard is "what is suitable material for minors." Reply Brief for Appellants 18, n. 13
(citing Ginsberg v. New York, 390 U. S. 629, 633 (1968)). But the Conferees expressly rejected
amendments that would have imposed such a "harmful to minors" standard. See S. Conf. Rep. No.
104-230, p. 189 (1996) (S. Conf. Rep.), 142 Congo Rec. H1145, H1165-H1166 (Feb. 1, 1996). The
Conferees also rejected amendments that would have limited the proscribed materials to those
lacking redeeming value. See ibid.
872
special First Amendment concerns because of its obvious chilling effect on free speech.
See, e. g.,Gentile v. State Bar of Nev., 501 U. S. 1030, 1048-1051 (1991). Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in prison for each act of violation. The severity of
criminal sanctions may well cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 494 (1965). As a
practical matter, this increased deterrent effect, coupled with the "risk of discriminatory
enforcement" of vague regulations, poses greater First Amendment concerns than those implicated
by the civil regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC,518
U. S. 727 (1996).
The Government argues that the statute is no more vague than the obscenity standard this Court
established in Miller v. California, 413 U. S. 15 (1973). But that is not so. In Miller, this Court reviewed
a criminal conviction against a commercial vendor who mailed brochures containing pictures of
sexually explicit activities to individuals who had not requested such materials. Id., at 18. Having
struggled for some time to establish a definition of obscenity, we set forth in Miller the test for
obscenity that controls to this day:
"(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." Id., at
24 (internal quotation marks and citations omitted).
873
Because the CDA's "patently offensive" standard (and, we assume, arguendo, its synonymous
"indecent" standard) is one part of the three-prong Miller test, the Government reasons, it cannot be
unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test-the
purportedly analogous standard-contains a critical requirement that is omitted from the CDA: that the
proscribed material be "specifically defined by the applicable state law." This requirement reduces
the vagueness inherent in the open-ended term "patently offensive" as used in the CDA. Moreover,
the Miller definition is limited to "sexual conduct," whereas the CDA extends also to include (1)
"excretory activities" as well as (2) "organs" of both a sexual and excretory nature.
The Government's reasoning is also flawed. Just because a definition including three limitations is not
vague, it does not follow that one of those limitations, standing by itself, is not vague.38 Each
ofMiller's additional two prongs-(l) that, taken as a whole, the material appeal to the "prurient"
interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"-critically limits the
uncertain sweep of the obscenity definition. The second requirement is particularly important
because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by
contemporary community standards. See Pope v. Illinois, 481 U. S. 497, 500 (1987). This "societal
value" requirement, absent in the CDA, allows appellate courts to impose some limitations and
regularity on the definition by setting, as a matter of law, a national floor for socially redeeming
value. The Government's contention that courts will be able to give such legal limitations to the
CDA's standards is belied by Miller's own rationale for having juries determine whether material
38 Even though the word "trunk," standing alone, might refer to luggage, a swimming suit, the base
of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part
description of a species of gray animals.
874
is "patently offensive" according to community standards: that such questions are essentially ones
offact.39
In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be entitled
to constitutional protection. That danger provides further reason for insisting that the statute not be
overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a
more carefully drafted statute.
VII
We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute
regulates the content of speech. In order to deny minors access to potentially harmful speech, the
CDA effectively suppresses a large amount of speech that adults have a constitutional right to
receive and to address to one another. That burden on adult speech is unacceptable if less restrictive
alternatives would be at least as effective in achieving the legitimate purpose that the statute was
enacted to serve.
In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual
expression which is indecent but not obscene is protected by the First Amendment." Sable, 492 U. S.,
at 126. See also Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) ("[W]here obscenity is
not involved, we have consistently held that the
39413 U. S., at 30 (Determinations of "what appeals to the 'prurient interest' or is 'patently offensive'
... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to

reasonably expect that such standards could be articulated for all 50 States in a single formulation,
even assuming the prerequisite consensus exists"). The CDA, which implements the "contemporary
community standards" language of Miller, thus conflicts with the Conferees' own assertion that the
CDA was intended "to establish a uniform national standard of content regulation." S. Conf. Rep., at
191.
875
fact that protected speech may be offensive to some does not justify its suppression").
Indeed,Pacifica itself admonished that "the fact that society may find speech offensive is not a
sufficient reason for suppressing it." 438 U. S., at 745.
It is true that we have repeatedly recognized the governmental interest in protecting children from
harmful materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at 749. But that interest does
not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained,
the Government may not "reduc[e] the adult population ... to ... only what is fit for
children."Denver, 518 U. S., at 759 (internal quotation marks omitted) (quoting Sable, 492 U. S., at
128).40 "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level
of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a
sandbox." Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74-75 (1983).
The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-aporn" invalidated in Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129, this Court rejected the
argument that we should defer to the congressional judgment that nothing less than a total ban
would be effective in preventing enterprising youngsters from gaining access to indecent
communications.Sable thus made clear that the mere fact that a statutory regulation of speech was
enacted for the important purpose of protecting children from exposure to sexually explicit material
does not foreclose inquiry into its validity.41 As we pointed out last
40 Accord, Butler v. Michigan, 352 U. S. 380, 383 (1957) (ban on sale to adults of books deemed
harmful to children unconstitutional); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128
(1989) (ban on "dial-aporn" messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U.
S. 60, 73 (1983) (ban on mailing of unsolicited advertisement for contraceptives unconstitutional).
41 The lack of legislative attention to the statute at issue in Sable suggests another parallel with this
case. Compare 492 U. S., at 129-130 ("[A]side from conc1usory statements during the debates by
proponents of
876
Term, that inquiry embodies an "overarching commitment" to make sure that Congress has designed
its statute to accomplish its purpose "without imposing an unnecessarily great restriction on
speech." Denver, 518 U. S., at 741.
In arguing that the CDA does not so diminish adult communication, the Government relies on the
incorrect factual premise that prohibiting a transmission whenever it is known that one of its
recipients is a minor would not interfere with adult-to-adult communication. The findings of the
District Court make clear that this premise is untenable. Given the size of the potential audience for
most messages, in the absence of a viable age verification process, the sender must be charged with
knowing that one or more minors will likely view it. Knowledge that, for instance, one or more
members of a 100-person chat group will be a minor-and therefore that it would be a crime to send
the group an indecent message-would surely burden communication among adults.42
The District Court found that at the time of trial existing technology did not include any effective
method for a sender to prevent minors from obtaining access to its communications on the Internet
without also denying access to adults. The Court found no effective way to determine the age of a
user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. 929 F.
Supp., at 845 (findings 90-94). As a practical matter, the Court also found
the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the
congressional record presented to us contains no evidence as to how effective or ineffective the
FCC's most recent regulations were or might prove to be .... No Congressman or Senator purported to
present a considered judgment with respect to how often or to what extent minors could or would
circumvent the rules and have access to dial-a-porn messages" (footnote omitted)), with n. 24,
supra.
42 The Government agrees that these provisions are applicable whenever "a sender transmits a
message to more than one recipient, knowing that at least one of the specific persons receiving the
message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4-5, n. 1.
877
that it would be prohibitively expensive for noncommercialas well as some commercial-speakers who
have Web sites to verify that their users are adults. Id., at 845-848 (findings 95-116).43 These
limitations must inevitably curtail a significant amount of adult communication on the Internet. By
contrast, the District Court found that "[dJespite its limitations, currently available userbasedsoftware suggests that a reasonably effective method by which parents can prevent their
children from accessing sexually explicit and other material which parents may believe is
inappropriate for their children will soon be widely available." Id., at 842 (finding 73) (emphases
added).
The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld
inGinsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial
entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent
messages or displaying them on their own computers in the presence of minors. The general,
undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic
material with serious educational or other value.44 Moreover, the "community standards" criterion as
applied to the Internet means that any communication avail43 The Government asserts that "[t]here is nothing constitutionally suspect about requiring
commercial Web site operators ... to shoulder the modest burdens associated with their use." Brief
for Appellants 35. As a matter of fact, however, there is no evidence that a "modest burden" would
be effective.
44 Transmitting obscenity and child pornography, whether via the Internet or other means, is already
illegal under federal law for both adults and juveniles. See 18 U. S. C. 1464-1465 (criminalizing
obscenity); 2251 (criminalizing child pornography). In fact, when Congress was considering the
CDA, the Government expressed its view that the law was unnecessary because existing laws already

authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation. See
141 Congo Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U. S.
Department of Justice, to Sen. Leahy).
878
able to a nationwide audience will be judged by the standards of the community most likely to be
offended by the message.45 The regulated subject matter includes any of the seven "dirty words"
used in the Pacifica monologue, the use of which the Government's expert acknowledged could
constitute a felony. See Olsen Testimony, Tr. Vol. V, 53:1654:10. It may also extend to discussions
about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably
the card catalog of the Carnegie Library.
For the purposes of our decision, we need neither accept nor reject the Government's submission
that the First Amendment does not forbid a blanket prohibition on all "indecent" and "patently
offensive" messages communicated to a 17-year-old-no matter how much value the message may
contain and regardless of parental approval. It is at least clear that the strength of the Government's
interest in protecting minors is not equally strong throughout the coverage of this broad statute.
Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on
the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term.
See 47 U. S. C. 223(a)(2) (1994 ed., Supp. II). Similarly, a parent who sent his 17-year-old college
freshman information on birth control via e-mail could be incarcerated even though neither he, his
child, nor anyone in their home community found the material "indecent" or "patently offensive," if
the college town's community thought otherwise.
45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among other cases,
appellees offer an additional reason why, in their view, the CDA fails strict scrutiny. Because so much
sexually explicit content originates overseas, they argue, the CDA cannot be "effective." Brief for
Appellees American Library Association et al. 33-34. This argument raises difficult issues regarding
the intended, as well as the permissible scope of, extraterritorial application of the CDA. We find it
unnecessary to address those issues to dispose of this case.
879
The breadth of this content-based restriction of speech imposes an especially heavy burden on the
Government to explain why a less restrictive provision would not be as effective as the CDA. It has
not done so. The arguments in this Court have referred to possible alternatives such as requiring that
indecent material be "tagged" in a way that facilitates parental control of material coming into their
homes, making exceptions for messages with artistic or educational value, providing some tolerance
for parental choice, and regulating some portions of the Internet-such as commercial Web sitesdifferently from others, such as chat rooms. Particularly in the light of the absence of any detailed
findings by the Congress, or even hearings addressing the special problems of the CDA, we are
persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all.
VIII
In an attempt to curtail the CDA's facial overbreadth, the Government advances three additional
arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is constitutional because
it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the
CDA's "knowledge" and "specific person" requirement significantly restricts its permissible
applications; and (3) that the CDA's prohibitions are "almost always" limited to material lacking
redeeming social value.
The Government first contends that, even though the CDA effectively censors discourse on many of
the Internet's modalities-such as chat groups, newsgroups, and mail exploders-it is nonetheless
constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted
speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the
CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore
inapplicable. See Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y.,
880
447 U. S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible on the Web
(which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's
interests were not accommodated by an existing Web site, not including costs for data base
management and age verification). The Government's position is equivalent to arguing that a statute
could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating
a number of laws that banned leafletting on the streets regardless of their content, we explained that
"one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea
that it may be exercised in some other place." Schneider v. State (Town of Irvington), 308 U. S. 147,
163 (1939).
The Government also asserts that the "knowledge" requirement of both 223(a) and (d), especially
when coupled with the "specific child" element found in 223(d), saves the CDA from overbreadth.
Because both sections prohibit the dissemination of indecent messages only to persons known to be
under 18, the Government argues, it does not require transmitters to "refrain from communicating
indecent material to adults; they need only refrain from disseminating such materials to persons they
know to be under 18." Brief for Appellants 24. This argument ignores the fact that most Internet
forums-including chat rooms, newsgroups, mail exploders, and the Web-are open to all comers. The
Government's assertion that the knowledge requirement somehow protects the communications of
adults is therefore untenable. Even the strongest reading of the "specific person" requirement of
223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a
"heckler's veto," upon any opponent of indecent speech who might simply log on and inform the
would-be discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U. S.
C. 223(d)(1)(A) (1994 ed., Supp. H)-would be present.
881
Finally, we find no textual support for the Government's submission that material having scientific,
educational, or other redeeming social value will necessarily fall outside the CDA's "patently
offensive" and "indecent" prohibitions. See also n. 37, supra.
IX

The Government's three remaining arguments focus on the defenses provided in 223(e)(5).46 First,
relying on the "good faith, reasonable, effective, and appropriate actions" provision, the Government
suggests that "tagging" provides a defense that saves the constitutionality of the CDA. The
suggestion assumes that transmitters may encode their indecent communications in a way that
would indicate their contents, thus permitting recipients to block their reception with appropriate
software. It is the requirement that the good-faith action must be "effective" that makes this defense
illusory. The Government recognizes that its proposed screening software does not currently exist.
Even if it did, there is no way to know whether a potential recipient will actually block the encoded
material. Without the impossible knowledge that every guardian in America is screening for the
"tag," the transmitter could not reasonably rely on its action to be "effective."
For its second and third arguments concerning defenseswhich we can consider together-the
Government relies on the latter half of 223(e)(5), which applies when the transmitter has restricted
access by requiring use of a verified credit card or adult identification. Such verification is not only
technologically available but actually is used by commercial providers of sexually explicit material.
These providers, therefore, would be protected by the defense. Under the findings of the District
Court, however, it is not economically feasible for most noncommercial speakers to employ such
verification. Accordingly, this defense would not signifi46 For the full text of 223(e )(5), see n. 26, supra.
882
cantly narrow the statute's burden on noncommercial speech. Even with respect to the commercial
pornographers that would be protected by the defense, the Government failed to adduce any
evidence that these verification techniques actually preclude minors from posing as adults.47 Given
that the risk of criminal sanctions "hovers over each content provider, like the proverbial sword of
Damocles,"48 the District Court correctly refused to rely on unproven future technology to save the
statute. The Government thus failed to prove that the proffered defense would significantly reduce
the heavy burden on adult speech produced by the prohibition on offensive displays.
We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on
protected speech, and that the defenses do not constitute the sort of "narrow tailoring" that will save
an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked that
the speech restriction at issue there amounted to "'burn[ing] the house to roast the pig.'" The CDA,
casting a far darker shadow over free speech, threatens to torch a large segment of the Internet
community.
X
At oral argument, the Government relied heavily on its ultimate fall-back position: If this Court should
conclude that the CDA is insufficiently tailored, it urged, we should save the statute's constitutionality
by honoring the severability clause, see 47 U. S. C. 608, and construing nonseverable terms
narrowly. In only one respect is this argument acceptable.
A severability clause requires textual provisions that can be severed. We will follow 608's guidance
by leaving con47 Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings
while providing little (or no) benefit for transmitters of indecent messages that have significant social
or artistic value. 48929 F. Supp., at 855-856.
883
stitutional textual elements of the statute intact in the one place where they are, in fact, severable.
The "indecency" provision, 47 U. S. C. 223(a) (1994 ed., Supp. II), applies to "any comment,
request, suggestion, proposal, image, or other communication which is obscene or
indecent."(Emphasis added.) Appellees do not challenge the application of the statute to obscene
speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment
protection. See Miller, 413 U. S., at 18. As set forth by the statute, the restriction of "obscene"
material enjoys a textual manifestation separate from that for "indecent" material, which we have
held unconstitutional. Therefore, we will sever the term "or indecent" from the statute, leaving the
rest of 223(a) standing. In no other respect, however, can 223(a) or 223(d) be saved by such a
textual surgery.
The Government also draws on an additional, less traditional aspect of the CDA's severability clause,
47 U. S. C. 608, which asks any reviewing court that holds the statute facially unconstitutional not
to invalidate the CDA in application to "other persons or circumstances" that might be
constitutionally permissible. It further invokes this Court's admonition that, absent "countervailing
considerations," a statute should "be declared invalid to the extent it reaches too far, but otherwise
left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). There are two flaws in
this argument.
First, the statute that grants our jurisdiction for this expedited review, 561 of the
Telecommunications Act of 1961, note following 47 U. S. C. 223 (1994 ed., Supp. II), limits that
jurisdictional grant to actions challenging the CDA "on its face." Consistent with 561, the plaintiffs
who brought this suit and the three-judge panel that decided it treated it as a facial challenge. We
have no authority, in this particular posture, to convert this litigation into an "as-applied" challenge.
Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of
the stat884
ute, would it be practicable to limit our holding to a judicially defined set of specific applications.
Second, one of the "countervailing considerations" mentioned in Brockett is present here. In
considering a facial challenge, this Court may impose a limiting construction on a statute only if it is
"readily susceptible" to such a construction. Virginia v. American Booksellers Assn., Inc., 484 U. S.
383, 397 (1988). See also Erznoznik v. Jacksonville, 422 U. S. 205, 216 (1975) ("readily subject" to
narrowing construction). The open-ended character of the CDA provides no guidance whatever for
limiting its coverage.
This case is therefore unlike those in which we have construed a statute narrowly because the text or
other source of congressional intent identified a clear line that this Court could draw. Cf., e. g.,
Brockett, 472 U. S., at 504-505 (invalidating obscenity statute only to the extent that word "lust" was

actually or effectively excised from statute); United States v. Grace, 461 U. S. 171, 180-183 (1983)
(invalidating federal statute banning expressive displays only insofar as it extended to public
sidewalks when clear line could be drawn between sidewalks and other grounds that comported with
congressional purpose of protecting the building, grounds, and people therein). Rather, our decision
in United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995), is applicable. In that case,
we declined to "dra[w] one or more lines between categories of speech covered by an overly broad
statute, when Congress has sent inconsistent signals as to where the new line or lines should be
drawn" because doing so "involves a far more serious invasion of the legislative domain."49 This
Court "will not rewrite a ... law
49 As this Court long ago explained: "It would certainly be dangerous if the legislature could set a net
large enough to catch all possible offenders, and leave it to the courts to step inside and say who
could be rightfully detained, and who should be set at large. This would, to some extent, substitute
the judicial for the legislative department of the government." United States v. Reese, 92 U. S. 214,
221 (1876). In part because of these
885
to conform it to constitutional requirements." American Booksellers, 484 U. S., at 397.50
XI
In this Court, though not in the District Court, the Government asserts that-in addition to its interest
in protecting children-its "[e]qually significant" interest in fostering the growth of the Internet
provides an independent basis for upholding the constitutionality of the CDA. Brief for Appellants 19.
The Government apparently assumes that the unregulated availability of "indecent" and "patently
offensive" material on the Internet is driving countless citizens away from the medium because of the
risk of exposing themselves or their children to harmful material.
We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of
ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the
Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the
absence of evidence to the contrary, we presume that governmental regulation of the content of
speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in
encouraging freedom of expression in a democratic society outweighs any theoretical but unproven
benefit of censorship.
For the foregoing reasons, the judgment of the District Court is affirmed.
It is so ordered.
separation-of-powers concerns, we have held that a severability clause is "an aid merely; not an
inexorable command." Dorchy v. Kansas, 264 U. S. 286, 290 (1924).
50 See also Osborne v. Ohio, 495 U. S. 103, 121 (1990) (judicial rewriting of statutes would derogate
Congress' "incentive to draft a narrowly tailored law in the first place").

G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and
DULCE
Q.
SAGUISAG,
petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD
OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.
The Solicitor General for respondents.
FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive
ring to the invocation of the constitutional right to freedom of expression 1 of an artistand for that
matter a man of letters tooas the basis for a ruling on the scope of the power of respondent Board of
Review for Motion Pictures and Television and how it should be exercised. The dispute between the
parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For
Adults Only." There is the further issue then, also one of first impression, as to the proper test of what
constitutes obscenity in view of the objections raised. Thus the relevance of this constitutional command:
"Arts and letters shall be under the patronage of the State. 2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production
outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the
Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig.
Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film
Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions
enumerated was granted. A motion for reconsideration was filed by petitioners stating that the
classification of the film "For Adults Only" was without basis. 4Then on November 12, 1984, respondent
Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984,
the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves
to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the
application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of
the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition.

This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading
submitted on January 21, 1985, as one of its special and affirmative defenses, it was alleged that the
petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one
immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut
[thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The
modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does not
raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of
the Board's action are the deletions ordered in the film. 7 The prayer was for the dismissal of the petition
.
An amended petition was then filed on January 25, 1985. The main objection was the classification of the
film as "For Adults Only." For petitioners, such classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression. The film is an integral whole and all its
portions, including those to which the Board now offers belated objection, are essential for the integrity
of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board
as basis for its classification. 8 There was an answer to the amended petition filed on February 18, 1985.
It was therein asserted that the issue presented as to the previous deletions ordered by the Board as well
as the statutory provisions for review of films and as to the requirement to submit the master negative
have been all rendered moot. It was also submitted that the standard of the law for classifying films
afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question
of the sufficiency of the standards remains the only question at issue.
It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of
standards to guide respondent Board in the exercise of its power. Even if such were the case, there is
justification for an inquiry into the controlling standard to warrant the classification of "For Adults Only."
This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of
artistic and literary expression embraced in the free speech and free press guarantees of the
Constitution.
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of
the artistic impulse. Their effects on the perception by our people of issues and public officials or public
figures as well as the prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson 9 is
the "importance of motion pictures as an organ of public opinion lessened by the fact that they are
designed to entertain as well as to inform. 10 There is no clear dividing line between what involves
knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the
basic right to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move.
Press freedom, as stated in the opinion of the Court, "may be Identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. 12 This is not to
say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and
present danger of a substantive evil that [the State] has a right to prevent. 13
2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so,
then such basic rights are emasculated. It is however, except in exceptional circumstances a sine qua
non for the meaningful exercise of such right. This is not to deny that equally basic is the other important
aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should
rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction.
As early as 1909, in the case of United States v. Sedano,14 a prosecution for libel, the Supreme Court of
the Philippines already made clear that freedom of the press consists in the right to print what one
chooses without any previous license. There is reaffirmation of such a view in Mutuc v. Commission on
Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate of
candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound
systems and loud speakers was considered an abridgment of the right of the freedom of expression
amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an
unconstitutional taint on its creation, the power of respondent Board is limited to the classification of
films. It can, to safeguard other constitutional objections, determine what motion pictures are for general
patronage and what may require either parental guidance or be limited to adults only. That is to abide by
the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise
prior restraint is not to be presumed, rather the presumption is against its validity. 16
3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and
present danger of an evil of a substantive character that the State has a right to prevent. Such danger
must not only be clear but also present. There should be no doubt that what is feared may be traced to
the expression complained of. The causal connection must be evident. Also, there must be reasonable
apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such
danger be only probable. There is the require of its being well-nigh inevitable. The basic postulate,
wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television
programs, and other such media of expression are concerned included as they are in freedom of
expression censorship, especially so if an entire production is banned, is allowable only under the
clearest proof of a clear and present danger of a substantive evil to public public morals, public health or
any other legitimate public interest. 17 There is merit to the observation of Justice Douglas that "every
writer, actor, or producer, no matter what medium of expression he may use, should be freed from the
censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in
Roth v. United States 19 speaking of the free speech and press guarantee of the United States
Constitution: "All Ideas having even the slightest redeeming social importance unorthodox Ideas,
controversial Ideas, even Ideas hateful to the prevailing climate of opinion have the full protection of
the guaranties, unless excludable because they encroach upon the limited area of the First Amendment
is the rejection of obscenity as utterly without redeeming social importance. 20 Such a view commends
itself for approval.
5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the
approach followed in Roth: "The early leading standard of obscenity allowed material to be judged merely

by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3
QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted
this test: whether to the average person, applying contemporary community standards, the dominant
theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity
by the effect of isolated passages upon the most susceptible persons, might well encompass material
legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms
of speech and press. On the other hand, the substituted standard provides safeguards adequate to
withstand the charge of constitutional infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any
impermissible infringement on the freedom of artistic expression calls to mind the landmark ponencia of
Justice Malcolm in United States v. Bustos, 22 decided in 1918. While recognizing the principle that libel is
beyond the pale of constitutional protection, it left no doubt that in determining what constitutes such an
offense, a court should ever be mindful that no violation of the right to freedom of expression is
allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v.
Sullivan,23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that
"sex and obscenity are not synonymous. 24 Further: "Obscene material is material which deals with sex in
a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works,
is not itself sufficient reason to deny material the constitutional protection of freedom of speech and
press. Sex, a great and mysterious motive force in human life has indisputably been a subject of
absorbing interest to mankind through the ages; it is one of the vital problems of human interest and
public concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying
contemporary Filipino cultural values as standard, 26 words which can be construed in an analogous
manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed
strongly that the arts and letters "shall be under the patronage of the State. 27 That is a constitutional
mandate. It will be less than true to its function if any government office or agency would invade the
sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It
is for the artist to determine what for him is a true representation. It is not to be forgotten that art and
belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or
perceived by an artist is entitled to respect, unless there is a showing that the product of his talent
rightfully may be considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the
widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit"
28
in this sensitive area of a man's personality. On the question of obscenity, therefore, and in the light of
the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a
fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing
the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a
universal role of construction, applied when considering constitutional questions, that when a law is
susceptible of two constructions' one of which will maintain and the other destroy it, the courts will
always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency of the
controlling standard and its conformity to what the Constitution ordains.
9. This being a certiorari petition, the question before the Court is whether or not there was a grave
abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light of
the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults
Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be
unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there
are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari
does not lie. This conclusion finds support in this explanation of respondents in its Answer to the
amended petition: "The adult classification given the film serves as a warning to theater operators and
viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were
taken in a theater-club and a good portion of the film shots concentrated on some women erotically
dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the
women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of
excessive violence attending the battle between a group of robbers and the police. The vulnerable and
imitative in the young audience will misunderstand these scenes." 32 Further: "Respondents further
stated in its answer that petitioner company has an option to have the film reclassified to For-GeneralPatronage if it would agree to remove the obscene scenes and pare down the violence in the film." 33
Petitioners, however, refused the "For Adults Only" classification and instead, as noted at the outset, filed
this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to
motion pictures. It is the consensus of this Court that where television is concerned: a less liberal
approach calls for observance. This is so because unlike motion pictures where the patrons have to pay
their way, television reaches every home where there is a set. Children then will likely will be among the
avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome
Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 it
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring
for the welfare of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this
petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a
grave abuse of discretion in the classification of Kapit sa Patalim as "For-Adults-Only."

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of
the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing
his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable
searches and seizures of the Constitution, as well as its prohibition against deprivation of property
without due process of law. There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated
from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines,
publications and other reading materials believed to be obscene, pornographic and indecent and
later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in
the presence of Mayor Bagatsing and several officers and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and coedited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agents
from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof
claiming that the magazine is a decent, artistic and educational magazine which is not per
se obscene, and that the publication is protected by the Constitutional guarantees of freedom of
speech and of the press.
By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction
on December 14,1983 and ordered the defendants to show cause not later than December 13, 1983
why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order.
against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's
pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining
order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that
the said materials were voluntarily surrendered by the vendors to the police authorities, and that the
said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No.
969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a
writ of preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on
December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and
peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment
was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of
preliminary injunction, raising the issue as to "whether or not the defendants and/or their agents can
without a court order confiscate or seize plaintiffs magazine before any judicial finding is made on
whether said magazine is obscene or not".
The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff
filed an urgent motion for issuance of another restraining order, which was opposed by defendant on
the ground that issuance of a second restraining order would violate the Resolution of the Supreme
Court dated January 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only for
twenty days from date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984
"for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy
Magazine alleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or
not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to
file a reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for
the defendants, who may file a rejoinder within the same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on
plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "ReplyMemorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a
writ of preliminary injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene
publications or materials deserves close scrutiny because of the constitutional guarantee protecting
the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution
against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however,
that freedom of the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws punishing the
author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the
search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs.
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure
(See Papa vs. Magno, 22 SCRA 857). 3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that
the police officers could without any court warrant or order seize and confiscate petitioner's
magazines on the basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that
the trial court could dismiss the case on its merits without any hearing thereon when what was
submitted to it for resolution was merely the application of petitioner for the writ of preliminary
injunction. 4
The Court states at the outset that it is not the first time that it is being asked to pronounce what
"obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs.
Kottinger, 5 the Court laid down the test, in determining the existence of obscenity, as follows:
"whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other article
charged as being obscene may fall." 6 "Another test," so Kottingerfurther declares, "is that which
shocks the ordinary and common sense of men as an indecency. " 7Kottinger hastened to say,
however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of
the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate
sense of the community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a
problem that has grown increasingly complex over the years. Precisely, the question is: When does a
publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities?
And obviously, it is to beg the question to say that a piece of literature has a corrupting
influence becauseit is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave
the final say to a hypothetical "community standard" whatever that is and that the question
must supposedly be judged from case to case.
About three decades later, this Court promulgatedPeople v. Go Pin, 10 a prosecution under Article
201 of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in
art exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in
art, there would be no offense committed. However, the pictures here in question were used not
exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those
pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and
for love for excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures. 11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not
entitled to any constitutional protection.
It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the
"redeeming" element that should accompany the work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving pictures of women
in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one
might yet claim that there was involved the element of art; that connoisseurs of the same, and
painters and sculptors might find inspiration in the showing of pictures in the nude, or the human
body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the
sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room
for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to
public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. ... 14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
exhibition was attended by "artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the same legitimately
lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of
[art], and painters and sculptors might find inspiration," 16 in it, would it cease to be a case of
obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted
an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in the United
States, adopted the test: "Whether to the average person, applying contemporary standards, the
dominant theme of the material taken as a whole appeals to prurient interest." 18 KalawKatigbakrepresented a marked departure from Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the final
arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of
obscenity essentially a judicial question and as a consequence, to temper the wide
discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey from
development to development, which, states one authoritative commentator (with ample sarcasm),
has been as "unstable as it is unintelligible." 19
Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly without
any redeeming social value," 21 marked yet another development.
The latest word, however, is Miller v. California, 22which expressly abandoned Massachusettes, and
established "basic guidelines," 23 to wit: "(a) whether 'the average person, applying contemporary
standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether
the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value." 24
(A year later, the American Supreme Court decidedHamling v. United States 25 which repeated Miller,
and Jenkins v. Georgia, 26 yet another reiteration ofMiller. Jenkins, curiously, acquitted the producers
of the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although
the film highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to recognize the constitutional dimension of the
problem . 27Apparently, the courts have assumed that "obscenity" is not included in the guaranty of
free speech, an assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here
is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever
do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject
as in all speech to regulation in the interests of [society as a whole] but not in the interest of a
uniform vision of how human sexuality should be regarded and portrayed." 28
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because
one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say,
five decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their works are considered important literature
today. 29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's
most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said
earlier, it is the divergent perceptions of men and women that have probably compounded the
problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been, an
easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment over the
discouraging trend in American decisional law on obscenity as well as his pessimism on whether or
not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced
with the problem, which, after all, is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its
protection. In free expression cases, this Court has consistently been on the side of the exercise of
the right, barring a "clear and present danger" that would warrant State interference and
action. 30 But, so we asserted in Reyes v. Bagatsing, 31 "the burdento show the existence of grave and
imminent danger that would justify adverse action ... lies on the. . . authorit[ies]." 32
"There must be objective and convincing, not subjective or conjectural, proof of the existence of such
clear and present danger." 33 "It is essentialfor the validity of ... previous restraint or censorship that
the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety
may require." 34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear
and present danger test." 35
The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we
may arrive at one-but rather as a serious attempt to put the question in its proper perspective, that
is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must
come to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof to justify a
ban and to warrant confiscation of the literature for which mandatory injunction had been sought
below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the
state has the right to protect society from pornographic literature that is offensive to public
morals." 36 Neither do we. But it brings us back to square one: were the "literature" so confiscated
"pornographic"? That we have laws punishing the author, publisher and sellers of obscence
publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969)," 37is
also fine, but the question, again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to
seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon, 38 We defined
police power as "state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare ." 39Presidential Decrees Nos. 960 and 969 are,
arguably, police power measures, but they are not, by themselves, authorities for high-handed acts.
They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances
(Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and the
right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves
lay down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints,
engravings, sculptures, paintings, or other materials involved in the violation referred to in Section 1
hereof (Art. 201), RPC as amended) shall be governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.
(b) Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings
conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15)
days after his receipt of a copy of the decision, appeal the matter to the Secretary of National
Defense for review. The decision of the Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:
1.
In case the offender is a government official or employee who allows the violations of Section
I hereof, the penalty as provided herein shall be imposed in the maximum period and, in
addition, the accessory penalties provided for in the Revised Penal Code, as amended, shall
likewise be imposed . 40
2.
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. InBurgos v. Chief of Staff, AFP, 43 We counter-minded
the orders of the Regional Trial Court authorizing the search of the premises of We
Forum andMetropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have
greater reason here to reprobate the questioned raid, in the complete absence of a warrant, valid or
invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is speech, whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:
SEC. 12. Search without warrant of personarrested. A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense. 44
but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the
arrest must be on account of a crime committed. Here, no party has been charged, nor are such
charges being readied against any party, under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free
the accused of all criminal responsibility because there had been no warrant," 45 and that "violation of
penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to
be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a
result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of
penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolled
into one. And precisely, this is the very complaint of the petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an
obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized are "obscene", and
pose a clear and present danger of an evil substantive enough to warrant State interference and
action;
3. The judge must determine whether or not the same are indeed "obscene:" the question is to be
resolved on a case-to-case basis and on His Honor's sound discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties
seized are indeed "obscene".
These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies
against abuse of official power under the Civil Code" 47 or the Revised Penal code . 48
WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET
ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been
destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and
academic.
SO ORDERED.
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.

ELISEO F. SORIANO,
Petitioner,
- versus MA. CONSOLIZA P. LAGUARDIA
DECISION
VELASCO, JR., J.:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to
nullify and set aside an order and a decision of the Movie and Television Review and Classification
Board (MTRCB) in connection with certain utterances he made in his television show, Ang Dating
Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired
on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang
babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga
demonyong ito.[1] x x x
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by
Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),[2]
against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt
directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV
program Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on
August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of
Ang Dating Daan.[4]
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16,
2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance
with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3,
Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of
the MTRCB Rules of Procedure.[5] The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse
themselves from hearing the case.[6] Two days after, however, petitioner sought to withdraw[7] his
motion for reconsideration, followed by the filing with this Court of a petition for certiorari and
prohibition,[8] docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano
liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from
his program, Ang Dating Daan.
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
SO ORDERED.[9]
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief,
docketed as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16
AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR
BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION
(A)
BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF
PREVENTIVE SUSPENSION ORDERS;
(B)
BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C)
FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D)
FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E)
FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS
OF JURISDICTION x x x CONSIDERING THAT:
I

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT
PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY,
THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW;
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR
ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY
REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS.
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH[11]
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been rendered
moot by the equally assailed September 27, 2004 decision.
It is petitioners threshold posture that the preventive suspension imposed against him and the
relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize
the MTRCB to issue preventive suspension.
Petitioners contention is untenable.
Administrative agencies have powers and functions which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the
Constitution or by statute.[12] They have in fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law.[13] And in determining whether an agency has certain
powers, the inquiry should be from the law itself. But once ascertained as existing, the authority
given should be liberally construed.[14]
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority
stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.The BOARD shall have the following functions, powers and duties:
xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x
production, x x x exhibition and/or television broadcast of the motion pictures, television programs
and publicity materials subject of the preceding paragraph, which, in the judgment of the board
applying contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or with a dangerous tendency to encourage the commission of violence or
of wrong or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x
produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the attainment of
the purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and
functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above,
which empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x

exhibition, and/or television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are determined by the BOARD
to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast
by television.
Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and
supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or
implied from such mandate. Any other construal would render its power to regulate, supervise, or
discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary
step in an administrative investigation.[15] And the power to discipline and impose penalties, if
granted, carries with it the power to investigate administrative complaints and, during such
investigation, to preventively suspend the person subject of the complaint.[16]
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under
PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive
suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing
preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR
provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to
prevent or stop further violations or for the interest and welfare of the public, the Chairman of the
Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the
permit/permits involved, and/or closure of the x x x television network, cable TV station x x x
provided that the temporary/preventive order thus issued shall have a life of not more than twenty
(20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more, would not
work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the
MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate
the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions
for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the
law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority
under the law. Far from it. The preventive suspension was actually done in furtherance of the law,
imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs,
pending a determination of whether or not there has actually been a violation. In the final analysis,
Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit
impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs
assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the
literal confines of the law, would give the agency little leeway to operate, stifling and rendering it
inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its
operation. Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be
necessary or incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the
power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from
express powers, implied powers are those that can be inferred or are implicit in the wordings or
conferred by necessary or fair implication of the enabling act.[17] As we held in Angara v. Electoral
Commission, when a general grant of power is conferred or a duty enjoined, every particular power
necessary for the exercise of one or the performance of the other is also conferred by necessary
implication.[18] Clearly, the power to impose preventive suspension pending investigation is one of
the implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive
suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs
authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered
ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioners argument on the nullity of the preventive suspension order on the
ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in
response to a written notice, appeared before that Board for a hearing on private respondents
complaint. No less than petitioner admitted that the order was issued after the adjournment of the
hearing,[19] proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of
the IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency of the case. In
this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated
PD 1986[20] and of administrative complaints that had been filed against him for such violation.[21]
At any event, that preventive suspension can validly be meted out even without a hearing.[22]
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing
that, owing to the preventive suspension order, he was unable to answer the criticisms coming from
the INC ministers.
Petitioners position does not persuade. The equal protection clause demands that all persons subject
to legislation should be treated alike, under like circumstances and conditions both in the privileges
conferred and liabilities imposed.[23] It guards against undue favor and individual privilege as well as
hostile discrimination.[24] Surely, petitioner cannot, under the premises, place himself in the same
shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB.

For another, he offers no proof that the said ministers, in their TV programs, use language similar to
that which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result
of the preventive suspension order is that petitioner remains temporarily gagged and is unable to
answer his critics, this does not become a deprivation of the equal protection guarantee. The Court
need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one
hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of
this case, simply too different to even consider whether or not there is a prima facie indication of
oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious
speech, adding that words like putang babae were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come within the pale
of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
There is nothing in petitioners statements subject of the complaints expressing any particular
religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his
statements in a televised bible exposition program does not automatically accord them the character
of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the
status of religious speech. Even petitioners attempts to place his words in context show that he was
moved by anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang
Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious
speech. We cannot accept that petitioner made his statements in defense of his reputation and
religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a
rival religious group. They simply illustrate that petitioner had descended to the level of name-calling
and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors,
but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and
expression and an impermissible prior restraint. The main issue tendered respecting the adverted
violation and the arguments holding such issue dovetails with those challenging the three-month
suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under
G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for
three months on the main ground that the decision violates, apart from his religious freedom, his
freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and
principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion pictures come
within the broad protection of the free speech and expression clause.[25] Each method though,
because of its dissimilar presence in the lives of people and accessibility to children, tends to present
its own problems in the area of free speech protection, with broadcast media, of all forms of
communication, enjoying a lesser degree of protection.[26] Just as settled is the rule that restrictions,
be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation
of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for
sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means
official government restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[27] The freedom of expression, as with the other freedoms encased in
the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important
public interests, some forms of speech not being protected. As has been held, the limits of the
freedom of expression are reached when the expression touches upon matters of essentially private
concern.[28] In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously
was not intended to give immunity for every possible use of language.[29] From Lucas v. Royo comes
this line: [T]he freedom to express ones sentiments and belief does not grant one the license to vilify
in public the honor and integrity of another. Any sentiments must be expressed within the proper
forum and with proper regard for the rights of others.[30]
Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-defined and
narrowly limited classes of speech that are harmful, the prevention and punishment of which has
never been thought to raise any Constitutional problems. In net effect, some forms of speech are not
protected by the Constitution, meaning that restrictions on unprotected speech may be decreed

without running afoul of the freedom of speech clause.[32] A speech would fall under the
unprotected type if the utterances involved are no essential part of any exposition of ideas, and are
of such slight social value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.[33] Being of little or no value, there is, in
dealing with or regulating them, no imperative call for the application of the clear and present
danger rule or the balancing-of-interest test, they being essentially modes of weighing competing
values,[34] or, with like effect, determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or lowvalue expression refers to libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or
tend to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioners statement can be treated as obscene, at least with respect to the
average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the
Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but
nonetheless stated the ensuing observations on the matter:
There is no perfect definition of obscenity but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of
facts has the unbridled discretion in determining what is patently offensive. x x x What remains clear
is that obscenity is an issue proper for judicial determination and should be treated on a case to case
basis and on the judges sound discretion.[35]
Following the contextual lessons of the cited case of Miller v. California,[36] a patently offensive
utterance would come within the pale of the term obscenity should it appeal to the prurient interest
of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal that
to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of
speech or merely a play on words. In the context they were used, they may not appeal to the
prurient interests of an adult. The problem with the challenged statements is that they were uttered
in a TV program that is rated G or for general viewership, and in a time slot that would likely reach
even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally, children
could hardly be expected to have the same discernment. Without parental guidance, the unbridled
use of such language as that of petitioner in a television broadcast could corrupt impressionable
young minds. The term putang babae means a female prostitute, a term wholly inappropriate for
children, who could look it up in a dictionary and just get the literal meaning, missing the context
within which it was used. Petitioner further used the terms, ang gumagana lang doon yung ibaba,
making reference to the female sexual organ and how a female prostitute uses it in her trade, then
stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be
motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase
in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the
reasons for the dissimilarity. And upon learning the meanings of the words used, young minds,
without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene,
if they take these words literally and use them in their own speech or form their own ideas on the
matter. In this particular case, where children had the opportunity to hear petitioners words, when
speaking of the average person in the test for obscenity, we are speaking of the average child, not
the average adult. The average child may not have the adults grasp of figures of speech, and may
lack the understanding that language may be colorful, and words may convey more than the literal
meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function
as such. In this sense, we find petitioners utterances obscene and not entitled to protection under
the umbrella of freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the
Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said
statements were made in a medium easily accessible to children. With respect to the young minds,
said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case
is veritably one of first impression, it being the first time that indecent speech communicated via
television and the applicable norm for its regulation are, in this jurisdiction, made the focal point.
Federal Communications Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark
case cited in Eastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a rich
source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal
component coming under the category of protected speech depending on the context within which it
was made, irresistibly suggesting that, within a particular context, such indecent speech may validly
be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a satiric
humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the
complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared
the language used as patently offensive and indecent under a prohibiting law, though not necessarily
obscene. FCC added, however, that its declaratory order was issued in a special factual context,
referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience.
Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme
Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1)
radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court,
however, hastened to add that the monologue would be protected speech in other contexts, albeit it
did not expound and identify a compelling state interest in putting FCCs content-based regulatory
action under scrutiny.
The Court in Chavez[41] elucidated on the distinction between regulation or restriction of protected
speech that is content-based and that which is content-neutral. A content-based restraint is aimed at
the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the
time, place, and manner of the expression under well-defined standards tailored to serve a
compelling state interest, without restraint on the message of the expression. Courts subject contentbased restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak,[42] easily reaches every home where there is a set [and
where] [c]hildren will likely be among the avid viewers of the programs therein shown; second, the
broadcast was aired at the time of the day when there was a reasonable risk that children might be
in the audience; and third, petitioner uttered his speech on a G or for general patronage rated
program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is
[s]uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD,
does not contain anything unsuitable for children and minors, and may be viewed without adult
guidance or supervision. The words petitioner used were, by any civilized norm, clearly not suitable
for children. Where a language is categorized as indecent, as in petitioners utterances on a generalpatronage rated TV program, it may be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography,[43] false or
misleading advertisement,[44] advocacy of imminent lawless action, and expression endangering
national security. But this list is not, as some members of the Court would submit, exclusive or
carved in stone. Without going into specifics, it may be stated without fear of contradiction that US
decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to
recognize exceptions to the rule against censorship in the past, this particular case constitutes yet
another exception, another instance of unprotected speech, created by the necessity of protecting
the welfare of our children. As unprotected speech, petitioners utterances can be subjected to
restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that
his utterances must present a clear and present danger of bringing about a substantive evil the State
has a right and duty to prevent and such danger must be grave and imminent.[45]
Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of
speech tests, would not avail him any relief, for the application of said test is uncalled for under the
premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that
the printed or spoken words may not be subject to prior restraint or subsequent punishment unless
its expression creates a clear and present danger of bringing about a substantial evil which the
government has the power to prohibit.[46] Under the doctrine, freedom of speech and of press is
susceptible of restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in the context
of prosecutions for rebellion and other crimes involving the overthrow of government.[47] It was
originally designed to determine the latitude which should be given to speech that espouses antigovernment action, or to have serious and substantial deleterious consequences on the security and
public order of the community.[48] The clear and present danger rule has been applied to this
jurisdiction.[49] As a standard of limitation on free speech and press, however, the clear and present
danger test is not a magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a court to
release a defendant from liability the moment the doctrine is invoked, absent proof of imminent
catastrophic disaster.[50] As we observed in Eastern Broadcasting Corporation, the clear and present
danger test does not lend itself to a simplistic and all embracing interpretation applicable to all
utterances in all forums.[51]
To be sure, the clear and present danger doctrine is not the only test which has been applied by the
courts. Generally, said doctrine is applied to cases involving the overthrow of the government and
even other evils which do not clearly undermine national security. Since not all evils can be measured
in terms of proximity and degree the Court, however, in several casesAyer Productions v.
Capulong[52] and Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief
Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the
legislation under constitutional attack interferes with the freedom of speech and assembly in a more
generalized way and where the effect of the speech and assembly in terms of the probability of
realization of a specific danger is not susceptible even of impressionistic calculation,[54] then the
balancing of interests test can be applied.
The Court explained also in Gonzales v. COMELEC the balancing of interests test:

When particular conduct is regulated in the interest of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the
two conflicting interests demands the greater protection under the particular circumstances
presented. x x x We must, therefore, undertake the delicate and difficult task x x x to weigh the
circumstances and to appraise the substantiality of the reasons advanced in support of the regulation
of the free enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social values and
individual interests competing for ascendancy in legislation which restricts expression, the court in
Douds laid the basis for what has been called the balancing-of-interests test which has found
application in more recent decisions of the U.S. Supreme Court. Briefly stated, the balancing test
requires a court to take conscious and detailed consideration of the interplay of interests observable
in a given situation or type of situation.
xxxx
Although the urgency of the public interest sought to be secured by Congressional power restricting
the individuals freedom, and the social importance and value of the freedom so restricted, are to be
judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily
relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and
importance of the specific aspect of the particular freedom restricted by the legislation; (b) the
specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the
persons affected are few; (c) the value and importance of the public interest sought to be secured by
the legislationthe reference here is to the nature and gravity of the evil which Congress seeks to
prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and
necessary for the protection of such public interest; and (e) whether the necessary safeguarding of
the public interest involved may be achieved by some other measure less restrictive of the protected
freedom.[55]
This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory that it is the
courts function in a case before it when it finds public interests served by legislation, on the one
hand, and the free expression clause affected by it, on the other, to balance one against the other
and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the
public interest served by restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests
on the basis that constitutional freedoms are not absolute, not even those stated in the free speech
and expression clause, and that they may be abridged to some extent to serve appropriate and
important interests.[57] To the mind of the Court, the balancing of interest doctrine is the more
appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension
was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his
enjoyment of his freedom of speech is ranged against the duty of the government to protect and
promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in support of
his claim to free speech, the Court rules that the governments interest to protect and promote the
interests and welfare of the children adequately buttresses the reasonable curtailment and valid
restraint on petitioners prayer to continue as program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom
of speech or expression, for without the enjoyment of such right, a free, stable, effective, and
progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is
the right of the youth to their moral, spiritual, intellectual, and social being which the State is
constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize
and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987
Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to
provide protection to the youth against illegal or improper activities which may prejudice their
general well-being. The Article on youth, approved on second reading by the Constitutional
Commission, explained that the State shall extend social protection to minors against all forms of
neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other
forms of discrimination.[58]
Indisputably, the State has a compelling interest in extending social protection to minors against all
forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling
interest in helping parents, through regulatory mechanisms, protect their childrens minds from
exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact
enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of
nation-building.[59] In the same way, the State is mandated to support parents in the rearing of the
youth for civic efficiency and the development of moral character.[60]
Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was
easily accessible to the children. His statements could have exposed children to a language that is
unacceptable in everyday use. As such, the welfare of children and the States mandate to protect
and care for them, as parens patriae,[61] constitute a substantial and compelling government
interest in regulating petitioners utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children who,
because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive
language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens
written message, [Fuck the Draft], might have been incomprehensible to a first grader, Pacificas
broadcast could have enlarged a childs vocabulary in an instant. Other forms of offensive expression
may be withheld from the young without restricting the expression at its source. Bookstores and
motion picture theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the governments interest in the well-being of its youth
and in supporting parents claim to authority in their own household justified the regulation of
otherwise protected expression. The ease with which children may obtain access to broadcast
material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare
of the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls
for observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely will be among the avid
viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome
Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young.[62]
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in
the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded
on the following considerations: (1) the use of television with its unique accessibility to children, as a
medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating
of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with
approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not
involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify
any sanction. x x x The [FFCs] decision rested entirely on a nuisance rationale under which context is
all important. The concept requires consideration of a host of variables. The time of day was
emphasized by the [FFC]. The content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a nuisance may be merely a right
thing in the wrong place, like a pig in the parlor instead of the barnyard. We simply hold that when
the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not
depend on proof that the pig is obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time television
are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes
necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the
State has the inherent prerogative, nay duty, to regulate and prevent should such action served and
further compelling state interests. One who utters indecent, insulting, or offensive words on
television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in
the parlor. Public interest would be served if the pig is reasonably restrained or even removed from
the parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an
administrative sanction or subsequent punishment for his offensive and obscene language in Ang
Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the
young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was
passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which
requires prior permit or license before showing a motion picture or broadcasting a TV program. The
Board can classify movies and television programs and can cancel permits for exhibition of films or
television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief
Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will

bring about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. x x x
xxxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and
classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we
upheld this setup in Sotto vs. Ruiz, viz:
The use of the mails by private persons is in the nature of a privilege which can be regulated in order
to avoid its abuse. Persons possess no absolute right to put into the mail anything they please,
regardless of its character.[63]
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and television
programs or parts of either are fit for public consumption. It decides what movies are immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition, or
tend to undermine the faith and confidence of the people in their government and/or duly constituted
authorities, etc. Moreover, its decisions are executory unless stopped by a court.[64]
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of review
and prior approval of MTRCB extends to all television programs and is valid despite the freedom of
speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB
since they are required to get a permit before they air their television programs. Consequently, their
right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice
Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the
government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly
agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry
as competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners
and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech
in radio and television programs and impliedly agreed that said right may be subject to prior
restraintdenial of permit or subsequent punishment, like suspension or cancellation of permit, among
others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to
continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for
such broadcast. Rather, the suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on the evening of August
10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly
impose under its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986
and the remedies that may be availed of by the aggrieved private party under the provisions on libel
or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in
profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the
sanction imposed is not per se for petitioners exercise of his freedom of speech via television, but for
the indecent contents of his utterances in a G rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom
of speech to regulation under PD 1986 and its IRR as television station owners, program producers,
and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the
suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It
is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit
or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the
enforcement and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time G rated TV program; it
does not bar future speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on speech. While not on all
fours, the Court, in MTRCB,[66] sustained the power of the MTRCB to penalize a broadcast company
for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD
1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were
it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in
a G rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the
freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded
to newspaper and print media. The MTRCB, as a regulatory agency, must have the wherewithal to
enforce its mandate, which would not be effective if its punitive actions would be limited to mere
fines. Television broadcasts should be subject to some form of regulation, considering the ease with
which they can be accessed, and violations of the regulations must be met with appropriate and
proportional disciplinary action. The suspension of a violating television program would be a
sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast
of petitioners television program is justified, and does not constitute prohibited prior restraint. It
behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect
these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law
creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of
religion. The Court has earlier adequately explained why petitioners undue reliance on the religious
freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his
program. The Court sees no need to address anew the repetitive arguments on religious freedom. As
earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no
way a religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate
defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as
an afterthought that this was his method of refuting the alleged distortion of his statements by the
INC hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word
simply came out as profane language, without any warning or guidance for undiscerning ears.
As to petitioners other argument about having been denied due process and equal protection of the
law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There
is no need to further delve into the fact that petitioner was afforded due process when he attended
the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated
against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does
not provide for the range of imposable penalties that may be applied with respect to violations of the
provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the
following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not
delegate its legislative power to the two other branches of the government, subject to the exception
that local governments may over local affairs participate in its exercise. What cannot be delegated is
the authority under the Constitution to make laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions when it leaves the hands of the legislature.
To determine whether or not there is an undue delegation of legislative power, the inquiry must be
directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its
functions when it describes what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the only way in which the legislative process
can go forward. A distinction has rightfully been made between delegation of power to make laws
which necessarily involves a discretion as to what it shall be, which constitutionally may not be done,
and delegation of authority or discretion as to its execution to be exercised under and in pursuance
of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as
denying the legislature the necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least
that the legislature itself determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines promulgate supplemental rules and
regulations.[67]
Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation
about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a
range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the
IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went
beyond the terms of the law.
Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption
being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties
for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment
of power and functions, is charged with supervising and regulating, granting, denying, or canceling
permits for the exhibition and/or television broadcast of all motion pictures, television programs, and
publicity materials to the end that no such objectionable pictures, programs, and materials shall be
exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree
authorizing the MTRCB to exercise such powers and functions as may be necessary or incidental to
the attainment of the purpose and objectives of [the law]. As earlier explained, the investiture of
supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry
with it the power to penalize the supervised or the regulated as may be proportionate to the offense
committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred. x x x [W]hen
the statute does not specify the particular method to be followed or used by a government agency in
the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable
method to carry out its function.[68]
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take

effective punitive action for violation of the law sought to be enforced. And would it not be logical too
to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast
necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference,
provides that agency with the power [to] promulgate such rules and regulations as are necessary or
proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x
x. And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of
the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to
Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion
pictures, television programs, and related promotional materials shall be penalized with suspension
or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and
other administrative penalty/penalties. The Board recognizes the existing Table of Administrative
Penalties attached without prejudice to the power of the Board to amend it when the need arises. In
the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis
added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted
provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ
such means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to
be applied to determine whether there have been statutory breaches. The MTRCB may evaluate
motion pictures, television programs, and publicity materials applying contemporary Filipino cultural
values as standard, and, from there, determine whether these audio and video materials are
objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and
apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details
in the enforcement of a particular statute.[69] The grant of the rule-making power to administrative
agencies is a relaxation of the principle of separation of powers and is an exception to the nondelegation of legislative powers.[70] Administrative regulations or subordinate legislation calculated
to promote the public interest are necessary because of the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of
administering the law.[71] Allowing the MTRCB some reasonable elbow-room in its operations and, in
the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an
appropriate issuance, administrative penalties with due regard for the severity of the offense and
attending mitigating or aggravating circumstances, as the case may be, would be consistent with its
mandate to effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD
1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly
the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1,
1999 is the Board empowered to suspend the program host or even to prevent certain people from
appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such
television programs or cancel permits for exhibition, but it may not suspend television personalities,
for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond
what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter
and spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And
when it exists, the reasonable doubt must be resolved in favor of the person charged with violating
the statute and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case
No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision
must be modified. The suspension should cover only the television program on which petitioner
appeared and uttered the offensive and obscene language, which sanction is what the law and the
facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on
television without adverse consequences, under the guise of free speech, does not lend itself to
acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute
freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say
that any act that restrains or regulates speech or expression is per se invalid. This only recognizes
the importance of freedoms of speech and expression, and indicates the necessity to carefully
scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby
AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As
thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE
(3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
Costs against petitioner.
SO ORDERED.

G.R. No. 159751

December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision 1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which
affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the
Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the
fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National
Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair
(Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19,
issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against
petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of
Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the
seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and
d. Copies of VHS tapes containing pornographic shows. 3
On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who,
according to the prosecution, introduced himself as the store attendant of Music Fair. The police
searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines,
which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which
reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there
willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows
at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there
selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women
having sexual intercourse[,] lewd photographs of nude men and women in explicating (sic) positions
which acts serve no other purpose but to satisfy the market for lust or pornography to public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial
ensued.
The prosecution offered the confiscated materials in evidence and presented the following witnesses:
Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro
Lipana, who were all present during the raid. After the prosecution presented its evidence, the
counsel for the accused moved for leave of court to file a demurrer to evidence, which the court
granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the
reception of evidence for the accused. A motion for reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and instead submitted the case for
decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as
follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY
ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to
suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of
prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable
doubt, he is hereby ACQUITTED of the crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in
favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the
decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from
isAFFIRMED IN TOTO.
Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of
the raid
II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the
time of the raid.8
Simply, the issue in this case is whether the appellate court erred in affirming the petitioners
conviction.
Petitioners contend that the prosecution failed to prove that at the time of the search, they were
selling pornographic materials. Fernando contends that since he was not charged as the owner of an

establishment selling obscene materials, the prosecution must prove that he was present during the
raid and that he was selling the said materials. Moreover, he contends that the appellate courts
reason for convicting him, on a presumption of continuing ownership shown by an expired mayors
permit, has no sufficient basis since the prosecution failed to prove his ownership of the
establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor
did he introduce himself so.9
The Solicitor General counters that owners of establishments selling obscene publications are
expressly held liable under Article 201, and petitioner Fernandos ownership was sufficiently proven.
As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor General also maintains that Estorninos was
identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10
At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present
their evidence to disprove refute the prosecutions evidence. 11 . Instead, they waived their right to
present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved
the case on the basis of prosecutions evidence against the petitioners.
As obscenity is an unprotected speech which the State has the right to regulate, the State in
pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent
materials must justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must
prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold,
exhibited, published or gave away such materials. 13 Necessarily, that the confiscated materials are
obscene must be proved.
Almost a century has passed since the Court first attempted to define obscenity in People v.
Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency or
delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences
and into whose hands a publication or other article charged as being obscene may fall. 15 Another test
according to Kottinger is "that which shocks the ordinary and common sense of men as an
indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must
depend upon the circumstances of the case, and that ultimately, the question is to be decided by the
judgment of the aggregate sense of the community reached by it. 17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al., 19 involving a
prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw
the fine lines of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of
art, to be viewed and appreciated by people interested in art, there would be no offense committed.
However, the pictures here in question were used not exactly for arts sake but rather for commercial
purposes. In other words, the supposed artistic qualities of said pictures were being commercialized
so that the cause of art was of secondary or minor importance. Gain and profit would appear to have
been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if
the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were
not exactly artists and persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid
curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting effects of
these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of
"redeeming feature." The Court therein said that:
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming
feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the land. 21
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still
applied the "contemporary community standards" of Kottinger but departed from the rulings
of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the
"dominant theme" of the material taken as a "whole" rather than in isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized
thatKottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the absence or presence of artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve
their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether
such exhibitions cease to be obscene. 23 Go Pin and Padan y Alova gave too much latitude for judicial
arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is
obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter.
Significantly, the dynamism of human civilization does not help at all. It is evident that individual
tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply
in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. 26 But, it would be a serious misreading of Miller to conclude that the trier
of facts has the unbridled discretion in determining what is "patently offensive." 27 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. 28 Examples included (a) patently offensive

representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and
(b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the judges sound discretion.
In this case, the trial court found the confiscated materials obscene and the Court of Appeals
affirmed such findings. The trial court in ruling that the confiscated materials are obscene, reasoned
as follows:
Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . .
.
Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated
magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of
QUI are offensive to morals and are made and shown not for the sake of art but rather for
commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The
pictures in the magazine exhibited indecent and immoral scenes and actsThe exhibition of the
sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an offense to
public morals, inspiringlust and lewdness, exerting a corrupting influence especially on the youth.
(Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled
"Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The
tape exhibited indecent and immoral scenes and acts. Her dancing movements excited the sexual
instinct of her male audience. The motive may be innocent, but the performance was revolting and
shocking to good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees were usually not artists or
persons interested in art to satisfy and inspire their artistic tastes but persons who are desirous of
satisfying their morbid curiosity, taste and lust and for [love] of excitement, including the youth who
because of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of the pictures, the display of such pictures for commercial purposes is a violation
of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense committed (People vs.
Go Pin, 97 Phil 418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect,
even by this Court, unless such findings are patently unsupported by the evidence on record or the
judgment itself is based on misapprehension of facts. 31 In this case, petitioners neither presented
contrary evidence nor questioned the trial courts findings. There is also no showing that the trial
court, in finding the materials obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene materials?
We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give
them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is
committed only when there is publicity. 32 The law does not require that a person be caught in the act
of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials
are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners
are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair,
named after petitioner Fernando.33 The mayors permit was under his name. Even his bail bond
shows that Hhe lives in the same place. 34 Moreover, the mayors permit dated August 8, 1996, shows
that he is the owner/operator of the store.35 While the mayors permit had already expired, it does
not negate the fact that Fernando owned and operated the establishment. It would be absurd to
make his failure to renew his business permit and illegal operation a shield from prosecution of an
unlawful act. Furthermore, when he preferred not to present contrary evidence, the things which he
possessed were presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and
exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNPCIDG NCR that conducted the search, identified him as the store attendant upon whom the search
warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold
the presumption of regularity in the performance of his duties. Lastly, this Court accords great
respect to and treats with finality the findings of the trial court on the matter of credibility of
witnesses, absent any palpable error or arbitrariness in their findings. 38 In our view, no reversible
error was committed by the appellate court as well as the trial court in finding the herein petitioners
guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of
the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in
Criminal Case No. 99-176582 are hereby AFFIRMED.
SO ORDERED.