Facts: 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 co-edited by plaintiff Leo Pita.
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 said defendants and their agents from confiscating plaintiff’s magazines or from 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. Plaintiff also 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. The Court granted the temporary restraining order. The case was set for trial upon the lapse of the TRO. RTC ruled that the seizure was valid. This was affirmed by the CA.
Issue: Whether or Not the seizure violative of the freedom of expression of the petitioner.
Held: 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. However, It is easier said than done to say, that if the pictures here in question were used not exactly for art's sake but rather for commercial purposes, the pictures are not entitled to any constitutional protection. Using the Kottinger rule: the test 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." Another is whether it shocks the ordinary and common sense of men as an indecency. Ultimately "whether a picture is obscene or indecent must depend upon the circumstances of the case and that the question is to be decided by the "judgment of the aggregate sense of the community reached by it." The government authorities in the instant case have not shown the required proof to justify a ban and to warrant confiscation of the literature 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 provides that the authorities must apply for the issuance of a search warrant from a judge, if in their opinion an obscenity seizure is in order and that;
1. 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;
2. 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 the judge’s sound discretion;
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