FHM fails to convince SC to void Manila’s anti-obscenity ordinance

Men's magazine FHM has failed to get the Supreme Court (SC) to declare as void Manila's anti-obscenity ordinance, a measure that one of the dissenting justices says may have a chilling effect on free expression.

Exercising "judicial restraint," the court's majority dismissed a petition by FHM's officers that wanted Manila's Ordinance No. 7780 stricken down as unconstitutional. Associate Justices Marvic Leonen, Estela Perlas-Bernabe, Rosmari Carandang, and then-senior justice Antonio Carpio dissented.

The case traces its roots to 2008, when a group of pastors and preachers filed complaints against seven men's magazines and tabloids, including FHM, accusing them of publishing obscene materials in violation of the local ordinance and Articles 200 (grave scandal) and 201 (immoral doctrines, obscene publications) of the Revised Penal Code.

While the complaint was pending at the prosecutor level, FHM ran to the SC to challenge the constitutionality of the city ordinance, alleging its "expansive" language violated their right to free speech and expression.

Only a case for violation of Article 201(3) would be filed before the Manila Regional Trial Court (RTC), but even that was dismissed in 2016.

In a ruling dated September 24, 2019 but released only on Wednesday, the High Court held that the dismissal of the criminal charges against FHM rendered their petition moot and academic.

Written by the now-retired associate justice Francis Jardeleza, the ruling also says Ordinance No. 7780 cannot be facially challenged for being overbroad because obscenity is a class of speech that is beyond the protection of the Constitution.

"The present petition does not involve a free speech case; it stemmed, rather, from an obscenity prosecution," the court said.

"As both this Court and the US Supreme Court have consistently held, obscenity is not protected speech. No court has recognized a fundamental right to create, sell, or distribute obscene material. Thus, a facial overbreadth challenge is improper as against an anti-obscenity statute."

The SC said the proper recourse for FHM would have been to go to trial to allow the RTC to determine whether the materials in question were obscene under the ordinance. The RTC's decision may then be elevated to the Court of Appeals, then to the SC for review, it said.

Ordinance No. 7780

According to the ordinance, "obscene" refers to any material that is "indecent, erotic, lewd or offensive, or contrary to morals, good customs or religious beliefs" or that is "calculated to excite impure imagination or arouse prurient interest"—"regardless of the motive" of the publisher, seller, performer, or author.

It does have a provision excluding materials that are "in connection with or in furtherance of science and scientific research and medical or medically related art, profession, and for educational purposes."

For Bernabe, one of the dissenters, the existence of the ordinance "has the effect of chilling otherwise protected forms of free speech because of the impending threat of them being tagged under Ordinance 7780 as obscene."

Article III, Section 4 of the 1987 Constitution says "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 grievances."

In her dissenting opinion, the senior associate justice said Ordinance No. 7780 is void for being overbroad.

Leonen, also a dissenter, found the language of the ordinance "unduly expansive" as he said it intends to punish every material showing nudity and sex "seemingly without distinction" and without regard for the motive of the author, performer, or publisher.

He also pointed out that the ordinance "singles out the female breast as lewder and more offensive than other sexual organs."

"Just as important, it may be time to ask why the contemporary community—as such, the government and this Court—polices the display of women's bodies with so much more zeal than it polices men's bodies," he wrote in his dissenting opinion.

He called the Manila ordinance a "feeble attempt to legislate morality" and voted to declare it void for being unconstitutional.

Carpio and Carandang joined his dissent.

FHM stopped print operations in 2018 when its publisher, Summit Media, went fully digital. — BM, GMA News