Censoring the Censors: Challenging the Powers of the MTRCB

from Khavn's Toxic Mango

Censoring the Censors: Challenging the Powers of the Movie and Television Review and Classification Board
by Francis Joseph Cruz

“There is no reason to accept the doctrines crafted to sustain power and privilege, or to believe that we are constrained by mysterious and unknown social laws. These are simply decisions made within institutions that are subject to human will and that must face the test of legitimacy. And if they do not meet the test, they can be replaced by other institutions that are more free and more just, as has happened often in the past.”
- Noam Chomsky

“Books won’t stay banned. They won’t burn. Ideas won’t go to jail. In the long run of history, the censor and the inquisitor have always lost. The only sure weapon against bad ideas is better ideas.”
- A. Whitney Griswold

Television and cinema represent a mode of escapism for the Philippine nation. The darkened theaters where matinee idols and action heroes are projected to a dirty white curtain become melting pots for Filipinos of different social class, educational attainment, gender, and religion. The soap operas, news programs, and other shows turn into mechanisms that keep Filipino families together with their eager eyes glued on their television sets. It has been rumored that merely three days after the monumental martyrdom of National Hero Jose P. Rizal, Filipinos were rushing to discover the newly arrived cinematograph. The urban legend further enunciates the Filipinos infatuation with the visual medium.

A decade after the tragic execution of the nationalistic martyr, Filipinos are still enamored by the illusionary delights of the motion picture. With the advent of television, even the working class and the have-nots have taken a piece of the new free entertainment. However, such entertainment has been placed with safeguards to assure that such is not abused.

Since the creation of the Movie and Television Review and Classification Board (MTRCB) through Presidential Decree No. 1986 in 1985, the attitude towards governmental regulation of motion pictures and television has been changing with reference to the passing of different presidential administrations and board leaderships.

In 1994, the MTRCB under the leadership of Henrietta Mendez ordered three cuts on Steven Spielberg’s Schindler’s List[1] before allowing the exhibition of the film in the Philippines. The scenes that were supposed to be cut included what were described as “breast exposures” and “pumping scenes.”[2]

In 2000, MTRCB chief Nicanor Tiongson approved Jose Javier Reyes’ realist melodrama Live Show[3] to be shown in Philippine cinemas, church groups were outraged claiming that Reyes’ film was pornographic and gratuitous. Due to pressure, Tiongson resigned and was replaced by a less liberal censors chief Alejandro Roces, who subsequently gave the film an X-rating. The censorship controversy hounded the newly established administration of Gloria Macapagal-Arroyo.[4]

Several other controversial MTRCB decisions have been made under the leadership of Marissa Laguardia. These include the stamping of the X-rating to a documentary about the life of former president Joseph Estrada[5], a short film about the Guimaras oil spill entitled Toxic Mango by independent filmmaker Khavn dela Cruz[6], and a television public affairs program episode about an indigenous tradition of giant wooden phalluses[7] and the burgeoning Rastafarian culture among Filipino youths[8].

With the board’s seemingly dubious methods in reviewing television programs and films, there arises an issue of legitimacy to its broad powers. This paper seeks to address the Constitutional issues that haunt the existence of the MTRCB by following the history of film and television censorship, and how such has applied in the Philippine setting.

I. History of Film and Television Censorship

The birth of censorship probably coincided with the birth of civilization and government. Governments and religions have suppressed ideas that can be considered threatening or blasphemous. As human civilization progressed and social norms and proper decorum have been institutionalized within the communal unit, suppression has expanded to expressions and ideas relating to sex, violence, and other elements that might threaten social order.

The standard for censorship in the modern democratic world is that of the United States of America. According to Marjorie Heins, there are three landmark cases that are the turning points in America’s history of cultural censorship[9], United States vs. One Book Entitle “Ulysses,”[10] Burstyn vs. Wilson[11], and Adler vs. Board of Education[12]. Adler discusses freedom from censorship in educational institutions and academic pursuits, and does not concern visual media. For the purposes of this paper, the American cases of Ulysses and Burstyn shall be discussed in detail, and will be capped by a discussion of the landmark case of Freedman vs Maryland[13].

A. United States vs One Book Entitled “Ulysses” (1933)

In 1892, the English courts in the case of Regina vs Hicklin[14] defined criminally punishable obscenity. According to Regina vs. Hicklin, “the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”[15] American courts later on adopted the doctrine. Trial and appellate courts would rule on obscenity cases based on the Hicklin doctrine.[16]
Several opposed the Hicklin doctrine. Judge Learned Hand, in the case of United States vs. Kennerley[17], wrote that American literary writers, readers, and publishers should not "reduce our treatment of sex to the standards of a child's library in the supposed interest of a salacious few."[18]

In the 1920’s in the United States, a burgeoning of new literary methods caused uproar with the moralists of the community. When a literary magazine published an excerpt from James Joyce’s novel entitled “Ulysses” wherein the novel’s hero was described pleasuring himself, it forced the New York Society for the Suppression of Vice to initiate to prosecute under the state’s obscenity laws. The court ruled upon the literary magazine as obscene and Joyce’s novel was subsequently banned, despite several expert witnesses declaring that the work has several literary merits.[19]

Random House attempted to release Ulysses in the United States but the United States Customs seized the books and filed a forfeiture application in federal court. Judge Woolsey was assigned the case, and ruled that the novel did not violate any federal obscenity laws. Woolsey abandoned the Hicklin doctrine, and stated that the proper test for obscenity is whether a literary work would lead to sexually impure and lustful thoughts to a normal adult[20], and not merely that of a child’s, as suggested by Hicklin. The appellate court ruled for Ulysses, furthering the opinion that the Hicklin doctrine would suppress “much of the great works of literature.”[21]

The Ulysses cases opened the doors of America to mature literature with an obscenity test that was not inexplicably restrictive to more modern narrative styles and presentations.

B. Burstyn vs Wilson (1952)

When The Great Train Robbery[22] was first screened in 1903, Americans were introduced to a novel way of storytelling, the cinematograph. Unlike written literature, the cinematograph merged reality with fiction by adding a visual and later on, an aural element to storytelling.

Nickelodeons where short films of mostly racy and bawdy materials were shows spread throughout America’s cities and neighborhoods. Filmmakers also started to explore larger and more adventurous themes such as corruption, sexuality, politics, crime, and violence. American moralists tried to mediate the threat of the popular new form of entertainment by enacting several censorship laws in several communities.[23]

The first case regarding film censorship to reach the United States Supreme Court is Mutual Film Corporation vs. Industrial Commission of Ohio[24]. The Supreme Court decided that the exhibition of films is a business, conducted for profit like other spectacles. As such, censorship was justified since the medium has a potential appeal to prurient interests.[25]

The Mutual Film decision paved a way for stronger censorship in America. Several films were banned or cut, while others underwent several lawsuits. Hollywood, in an effort to save face while many studios are being prosecuted for releasing lewd films, formed the Motion Picture Producers and Distributors of America (MPPDA). The MPPDA, through its first chairman former Postmaster General Will Hays, created the Hays Code. The Hays Code is a list that disapproves on several sensitive portrayals such as profanity, violence, drugs, sexuality, and blasphemy.[26]

The problem with the Hays Code is that it merely controlled the conceptualization and production of American films. In the late 40’s and early 50’s, an onslaught of foreign pictures paved their way to American cinemas. One of these foreign films is Roberto Rossellini’s The Miracle[27], which was released in America in 1948.

The Miracle was considered by American bishops as blasphemous because of its portrayal of a dimwitted peasant who was lured into sexual intercourse by a vagabond she mistook for St. Francis of Assisi. The film was accused of being insulting to the Christian faith and Italian womanhood.[28] New York’s Board of Regents subsequently revoked the film’s license. This prompted the film’s distributor to launch a trial challenging the existence of movie licensing.

The trial court ruled against the distributor using the 1915 Mutual Films doctrine. However, the Supreme Court overruled the decision overturning the Mutual Films doctrine by stating that cinema is protected by the First Amendment. Furthermore, the Court said that setting the censor “adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.”[29]

C. Freedman vs Maryland (1965)

The problem with the Burstyn ruling was that it left the question of whether a state can impose prior censorship under a statute that is made to “prevent the showing of obscene films.”[30] Despite the Burstyn ruling, several censorship and licensing boards were still banning the releases and exhibitions of several foreign films, with vague standards for doing such.
With the dismantling of the Hays Code in the 1960’s, Hollywood and other independent studios were freed from the constraints of filmmaking under a set of dos and don’ts.

In 1964, the Court of Appeals of Maryland affirmed the decision of a Criminal Court in Baltimore convicting Ronald L. Freedman under the state censorship laws.[31] Freedman publicly exhibited a film without submitting such film to the State’s censorship board.

Freedman raised the issue to the United States Supreme Court, which reversed the Court of Appeals’ decision. The Supreme Court stated that there are three safeguards against undue inhibition of protected expression that should be met by any licensing or censoring board:

(1) The censorship law must place the burden of proving that a film is obscene on the part of the censoring body.

(2) If the censoring body should find that a film is obscene, the body should go to the court to apply for an injunction to prevent the film from being exhibited publicly.

(3) The censorship law must have a provision stating that the court may review the decision of the censoring body, and that the court has the final say in the determination if such film should be prohibited.[32]

The Freedman ruling was followed by several other decisions that declared illegal the actions of several State censorship boards. In the case of Byrne vs. Karalexis[33], the United States Supreme Court overturned the anti-obscenity laws of Massachusetts when the state refused to allow the exhibition of Vilgot Sjoman’s I Am Curious – Yellow[34] for the reason of the film having pornographic depictions of nudity and sex.

The Freedman ruling has not yet been overturned. Today, the motion picture, television, and radio industries have become self-regulation. The motion picture industry has the Motion Picture Association of America (MPPA), which rates all the films that seek exhibition in America.

II. History of the MTRCB

Being an America colony, the Philippines followed American statutes and jurisprudence when it came to regulation and censorship. When the Philippines gained independence from the Americans, it created its own censorship board by enacting Republic Act No. 3060, which created the Board of Censors for Motion Pictures (BCMP). Television also became part of the jurisdiction of the BCMP.

On September 29, 1977, President Ferdinand Marcos issued Letter of Instructions No. 13, which effectively amended the BCMP, making its censorship powers more restrictive, especially with regards to socio-politically themed films.[35]

Under Executive Order Nos. 585, 745, and 757, the BCMP was replaced by the Board of Review for Motion Pictures and Television (BRMPT). Marcos tried to expand the powers of the BRMPT through Executive Order No. 868, which expanded the BRMPT’s jurisdiction to include live performances such as theatrical presentations.

To ease the tension created by artists who have banded together to form the Free The Artist Movement (FTA) and the Concerned Artists of the Philippines (CAP), Marcos created the Experimental Cinema of the Philippines (ECP). Moreover, Marcos removed the controversial and restrictive provisions of Executive Order No. 868 through the enactment of Executive Order No. 876 and 876-A.

When the BRMPT refused to allow the exhibition of the Lino Brocka film Bayan Ko: Kapit Sa Patalim[36] in 1984, the producers of the film went to the Supreme Court to assert its rights. In 1985, the Supreme Court ruled to deny the petition of the producers of the film, based 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 Bayan Ko: Kapit sa Patalim as "For-Adults-Only."”[37] Moreover, the BRMPT already has revoked its questioned resolution, and has already given the producer of the film a license to exhibit Bayan Ko: Kapit sa Patalim.

The meat of Gonzalez vs Katigbak is not the disallowance of Kapit sa Patalim to be exhibited in public but the fact that the Court, to a certain extent, diminished the power of the BRMPT when it stated that “the power of respondent Board is limited to the classification of films.... 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.”[38] The Court continued to state that “Censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, public morals, public health or any other legitimate public interest.”[39]

Probably reacting from the decision of the court in Gonzalez vs. Katigbak which lessened the powers of the BRMPT, Marcos issued Presidential Decree No. 1986 on October 5, 1985. P. D. 1986 abolished the BRMPT and replaced it with the Movie and Television Regulation and Classification Board (MTRCB). The MTRCB’s charter remains unchanged since its creation in 1985.

III. Constitutional Challenges to the MTRCB

According to the preamble of P. D. 1986, the MTRCB was created with the need to infuse “innovative and fresh ideas toward the improvement and development of the film and television industry,” and to “improve, upgrade and make viable the industry as one source of fueling the national economy,” it says nothing about “setting standards for cultural refinement in movies and television,” nor does it give the board the responsibility “to keep society's moral balance.”[40]

With such vision in mind, the MTRCB was granted eleven powers and functions where they may base their rules and regulations. These are:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this act, and the accomplishments of its purposes and objectives, including guidelines and standards for production, advertising and titles;

(2) To screen, review and examine all motion pictures, television programs; including publicity materials such as advertisements, trailers and stills, both for theatrical and non-theatrical distribution, for television broadcast or for viewing, imported or produced in the Philippines, whether for local or export;

(3) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials which in the judgment of the Board based on contemporary Filipino cultural values as standard, are objectionable such as:

a) those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic and/or political stability of the State;
b) those which tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities;
c) those which glorify criminals or condone crimes;
d) those which serve no other purpose but satisfy the market for violence or pornography;
e) those which tend to abet the traffic in and use of prohibited drugs;
f) those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; and
g) those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are subjudice in nature.

(4) To supervise, regulate, and grant, deny or cancel permits for the importation, exportation, production, copying, distribution, sale, lease exhibition, and/or television programs and publicity materials, to the end that no such pictures, programs and materials are determined by the Board to be objectionable shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibit and/or broadcast by television;

(5) To classify motion pictures, television programs and similar shows into categories such as "G" or "For General Patronage" (all ages admitted) "P" for Parental Guidance Suggested, or "R" or "Restricted" (for adults only) "X" or "Nor for Public Viewing," or such other categories as the Board may determine for the public interest;

(6) To close the moviehouses and other similar establishments engaged in the public exhibition of motion pictures and television programs which violate the provisions of this Act and the rules and regulations promulgated by the Board;

(7) To levy, assess and collect, and periodically adjust and revise the rates of fees and charges for the work of review and examination and for the issuance of the licenses and permits which the Board is authorized to grant in the exercise of its power and functions and in the performance of its duties and responsibilities;

(8) To deputize representatives from the government and from the various associations in the movie industry, whose main duties shall be to help ensure compliance with all laws relative to the importation, exportation, copying, distribution, sale, lease, exhibition and/or television broadcast of motion pictures, television programs, advertisements and publicity materials.

For this purpose, the Board may constitute such Regulatory Council or Councils composed of representatives from the government and the movie and television industry as may be appropriate to implement the purposes and objectives of this Act. The Board may also call on any law enforcement of its decisions, orders or awards;

(9) To cause the prosecution on behalf of the People of the Philippines, of violators of this Act, or anti-trust, obscenity, censorship and other laws pertinent to the movie and television industry;

(10) To prescribe the internal and operational procedures for the exercise of its powers and functions as well as the performance of its duties and responsibilities, including the creation and vesting of authority upon sub-committee of the Board for the work or review and other related matters; and;

(11) To exercise such other powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act, and to perform such other related duties and responsibilities as may be directed by the President of the Philippines.[41]

It is quite clear that despite the board’s title saying that it is a “regulatory and classification board,” it still has functions that are censorial in nature. The Board has the authority to “approve or disapprove, delete objectionable portions from and/or prohibit” the exhibition of a film. Moreover, the Board also has the statutory authority to ban the exhibition of a film deemed to be unfit for public viewing.[42]

More interesting are the standards that the MTRCB utilizes as guidance in its classification and regulation duties. The “dangerous tendency” is the test used by the MTRCB, despite the Court ruling in Gonzalez vs. Katigbak wherein the “clear and present danger” test was the one prescribed by the Court in the determination of the permissibility of censorship.

In the words of Chief Justice Fernando in Gonzalez vs. Katigbak, “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 were 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 morals, public health or any other legitimate public interest.”[43]

According to Atty. Victor Avecilla, the only reason why the MTRCB charter has not yet been abolished is because of the fact that it hasn’t been repealed by Congress, or has been declared unconstitutional by our courts. He furthers his contention that P. D. 1986 is patently unconstitutional because it does not pass the three safeguards laid down by the landmark case of Freedman vs. Maryland.[44]

He also contends that the presidential decree suffers from being void for vagueness. In the enumerated grounds that the MTRCB charter lists, a curious proviso “such as but not limited to” appears, giving an indication that the list may actually grow, depending on the needs of the State or the administration.[45]

Lastly, Avecilla contends that the standard procedure the MTRCB follows is violative of administrative due process. According to Avecilla, “Administrative due process requires that the standards for the exercise of power must be clearly defined. For example, when a film is judged bythe board as obscene, we must know what constitutes obscenity. The standard for obscenity must be defined.”[46]

In fact, the rules for determining whether a program or film is obscene is continually modified depending on the personalities of those who head the Board. The MTRCB under the guidance of Manoling Morato was seen as ultra-conservative.[47] The Mendez Board, like Morato’s was perceived as ultra-conservative, but opened the Appeals Board for filmmakers and program directors.[48] The Board under Jesus Sison has three objectives, which are: "to encourage the production of more films that depict the innate heroism of the Filipino;" secondly, "to search for ways to install a self regulatory framework for the film industry, where the MTRCB and industry leaders will call upon their colleagues to exercise responsibility in movie making...;" and lastly, "to confer a 'developmental dimension' to the work of the MTRCB so that it will go beyond wielding the censor's scissors and do the spadework image in the public eye..."[49]

With three different MTRCB leaderships, a vast difference can be seen with the way the Board treats censorship and regulation. The MTRCB charter is so easily malleable that there can be no one single standard in the determination for the propriety of exhibition of films and television programs.

IV. Jurisprudential Challenges to the MTRCB

Since the creation of the MTRCB in 1985, there have only been three challenges to its broad powers that have reached the Supreme Court. Interestingly, despite the positive developments that were brought about by the decision in Gonzalez vs Katigbak, it seems that the development in censoring and regulation in the Philippines is backward moving. Probably due to the fact that the Philippine movie industry has been in a decline the past decade, no movie producer has gone up to the Supreme Court to question a dubious ruling my the MTRCB.

The three cases that sought to question the powers of the MTRCB all involve programs aired in the television. Iglesia ni Cristo (Inc.) vs. Court of Appeals[50] bolstered its appeal to the Supreme Court by arguing that its television program is exempted from the jurisdiction of the MTRCB because of the freedom of religion clause in the Constitution. MTRCB vs ABS-CBN Broadcasting Corp, et. al.[51] similarly seeks exemption from the broad powers of the MTRCB utilizing the freedom of the press clause that is enshrined in our Constitution. Lastly, GMA Network, Inc. vs. MTRCB[52] sought to clarify the powers granted to the MTRCB and the exemptions to these powers.

A. Iglesia ni Cristo (Inc.) vs. Court of Appeals (1996)

1. Facts of the Case

In September, October and November of 1992, petitioner Iglesia ni Cristo (Inc.), submitted to the MTRCB tapes of its three episodes of its program that was being aired in Channel 2 pursuant to Section 4 of P. D. 1986. The MTRCB subsequently gave an X-rating to the episodes, ruling that the episodes may offend and constitute an attack against other religions, which is expressly prohibited in the law.

Following the procedure of appeals in P. D. 1986, Iglesia ni Cristo (Inc.) appealed to the Office of the President, and filed a civil case against the MTRCB with the Regional Trial Court of Quezon City (RTC-QC). The petitioner succeeded in its appeal with the Office of the President. The RTC-QC ordered the MTRCB to grant Iglesia ni Cristo (Inc.) the necessary permits to carry on its broadcast, but also ordered the petitioner to refrain from attacking or criticizing other religions on its program. Upon a motion for reconsideration filed by Iglesia ni Cristo (Inc.), the RTC-QC reversed the second part of the dispositive portion of its ruling.

On March 5, 1995, the Court of Appeals reversed the decision of the RTC-QC. This urged Iglesia ni Cristo (Inc.) to bring the matter to the Supreme Court, forwarding the issues of (1) whether or not the MTRCB has the power to review the program of Iglesia ni Cristo (Inc.) despite freedom of religion clause; and (2) that if the MTRCB indeed has the power to review religious programs, may it prevent the airing of the questionable episodes for the reason that they constitute an attack against other religions.

2. Ruling of the Court

The Supreme Court answered the first issue in the positive, and the second issue in the negative.

In doing away with the freedom of religion argument of Iglesia ni Cristo (Inc.), the Court used former Supreme Court Justice Isagani Cruz’s differentiation of freedom to believe and freedom to act on one’s belief. The former is considered to be absolute as long as it stays in the realm of thought. The latter may be subject to regulation where the belief is turned into external acts that may affect public welfare.[53]

With that, and the provision in P. D. 1986 giving the MTRCB the power to screen, review and examine “all television programs.” A clear interpretation of the provision shows that aside from those exempted by the law, the MTRCB has jurisdiction over all programs aired in television, including religious programs.

In resolving the second issue, the Court stated that “Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech.”[54] The Court said that the so-called attacks were actually mere criticisms based on the pieces of evidence submitted by the petitioner. Moreover, “attacks against another religion” is not one of the situations conceived by P. D. 1986. Such was only added in the Board rules[55], which the court voided for being against the administrative doctrine that rules and regulations cannot expand the letter and spirit of the law they seek to enforce.

The meat of the case is its reiteration of the “clear and present danger” test. The Court cited the case of Victoriano vs Elizalde Rope Workers Union[56] stating that “only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger.”

Despite the Court’s acknowledgment of the need to institute the “clear and present danger” in censoring works, it prevented the reasoning in the Freedman vs Maryland case to take precedent in the Philippines. The Court stated that “we are not ready to hold that it 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.”[57] To bolster such argument, it cited the 1921 case of Sotto vs. Ruiz[58], not keeping in mind that technology and social norms have evolved since its promulgation.

Justice Kapunan in his separate and dissenting opinion said that Sotto cannot be invoked since such was ruled with Section 1954 of the old Administrative Code. Kapunan said that “freedom of worship is such a precious commodity in our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who determines, without judicial safeguards, whether or not to allow the exercise of such freedom.” He capped his argument with the statement that “the rights of free expression and free exercise of religion occupy a unique and special place in our constellation of civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema to a society which places high significance to these values.”[59]

In Justice Mendoza’s separate opinion, he declares Section 3 (c) of P. D. 1986[60] unconstitutional. Using the case of Gonzalez vs Katigbak, Justice Mendoza states that “the standard for judging the validity of prior restraint on political expression is stricter than that for adjudging restraints on materials alleged to be obscene, but not that the test of clear and present danger is applicable in determining whether or not a permit may be granted.” Moreover, he suggests that “We have long ago done away with controls on print media, it is time we did the same with the control on broadcast media, which for so long has operated under restraints, leaving the punishment for violations of laws to be dealt with by subsequent prosecution.”[61]

Iglesia ni Cristo (Inc.) vs. Court of Appeals shows a forward-thinking judiciary that is willing to overturn decisions of the MTRCB that may be deemed unduly restrictive under the “clear and present danger test,” as opposed to the “dangerous tendency” test promulgated by P. D. 1986. While it is not ready to do away with the Board by not recognizing the far-reaching effects of Freedman vs. Maryland, the Court was able to resurface the landmark case of Gonzalez vs. Katigbak in the determination of propriety of prior censorship.

B. MTRCB vs. ABS-CBN Broadcasting Corp. (2005)

1. Facts of the Case

On October 15, 1991 at 10:45pm, ABS-CBN aired Prosti-tuition during its programs The Inside Story that is hosted and produced by co-petitioner Loren Legarda. The episode was about students of Philippine Women’s University (PWU) who worked as prostitutes and pimps to earn money for their tuition fees. The administration of PWU filed a complaint with the MTRCB alleging that the episode besmirched the name of the institution and its students. The MTRCB initiated a formal complaint with its Investigation Committee, finding that ABS-CBN did not submit a tape prior to exhibition, and that it exhibited the episode without its permission, which violated Section 7 of P. D. 1986 and Section 3, Chapter III[62] and Section 7, Chapter IV[63] of the MTRCB Rules and Regulations.

ABS-CBN argued that it was exempt from the jurisdiction of the MTRCB since Inside Story is a public affairs program, and that it’s airing is protected by the constitutional provision on freedom of expression and of the press. Despite the argument, the MTRCB ruled against petitioners, fining the corporation and ordering it to submit all tapes of the episodes of the program before airing them. ABS-CBN appealed to the Regional Trial Court of Quezon City (RTC-QC), which overturned the ruling of the MTRCB.

The MTRCB raised the case to the Supreme Court forwarding the issue of whether or not MTRCB has the power and authority to review the public affairs program prior to its broadcast.

2. Ruling of the Court

In disposing of the issue, the Supreme Court used its earlier ruling in Iglesia ni Cristo (Inc.) vs. Court of Appeals. The Court said that in Iglesia ni Cristo (Inc.), the petitioners sought exception from the jurisdiction of the MTRCB of reviewing its programs before broadcast. To bolster such prayer, the petitioners in that case used the freedom of religion clause in the Constitution. However, the Supreme Court ruled that P. D. 1986 is final when it states that all television programs are to be reviewed by the MTRCB.

The Court differentiated the freedom of religion and freedom of the press. It ruled that freedom of religion has been granted preferred status, while freedom of the press has not been granted preferred status. If in Iglesia ni Cristo (Inc.), such was not granted an exception based on a freedom of preferred status, what more in this case wherein the exception is based on a freedom bearing no preferred status. In Court’s own words, “If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom “The Inside Story” which, according to respondents, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status.”[64]

The Court also clarified the meaning of newsreels, which are exempted from prior review of the MTRCB. According to the Court, “newsreels are straight presentation of events. They are depiction of “actualities.” Correspondingly, the MTRCB Rules and Regulations implementing P. D. No. 1986 define newsreels as “straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are not considered newsreels.”[36] Clearly, the “The Inside Story” cannot be considered a newsreel. It is more of a public affairs program which is described as a variety of news treatment; a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions. Certainly, such kind of program is within petitioner’s review power.”[65]

The ruling in MTRCB vs. ABS-CBN Corp. merely reiterated the ruling in Iglesia ni Cristo (Inc.) vs. Court of Appeals. Apart from the clarifications of definitions and the extent of the reviewing powers of the Board, the case did not touch on important issues regarding censorship and other Constitutional issues.

3. GMA Broadcasting Corp. vs MTRCB (2007)

The program in question in GMA Broadcasting Corp. vs. MTRCB[66] is Muro-Ami: The Making which the network broadcasted without first securing a permit from the MTRCB. The petitioners claimed that the program was a public affairs program, which was exempted from the MTRCB by virtue of the freedom of the press.

In resolving the case, the Supreme Court merely reiterated its ruling in MTRCB vs ABS-CBN Corp., stating that public affairs programs are not part of the list of those exempted from the prior review powers of the MTRCB.

V. Conclusion

As can be noted from the little jurisprudence regarding the powers of the MTRCB, there seems to be a discomforting acceptance to the Board’s overreaching powers that subtly threaten our Constitutionally guarded rights.

“No law shall be passed abridging freedom of speech, of expression, and of the press.”[67]

The 1986 EDSA Revolution successfully brought back democracy when it deposed Ferdinand Marcos. Carried over from the previous Constitution is Section 4 of the Bill of Rights, which artists and filmmakers were banking on to be ideally tested in a dictatorship-free nation. However, among those carried over from the Marcos administration is P. D. 1986, a dated and strict law that does not seem to fit within the promise of a free nation.

There are plenty of possible alternatives to the MTRCB. First, P. D. 1986 should be repealed causing the abolition of the MTRCB. However, without any regulatory body guiding the citizenry, the effect might be chaos and a proliferation of immoral and gratuitous entertainment.[68]

Second, the MTRCB charter should be amended stripping away its censorship and cutting powers. This alternative acknowledges the need for a regulatory body that will supervise the showing of movies according to audience sensibility without sacrificing artistic integrity and creativity.[69]

Third, turn MTRCB into solely a classification body. Furthermore, there should be an implementation of X-rated cinemas wherein X-rated features can be viewed.[70] This suggestion would release the MTRCB from its quasi-censorial duties of labeling a film X-rated, and subsequently banning it from being exhibited in the Philippines. The classification duties of the MTRCB shall serve as a mere guiding force to the citizenry, instead of an ultra-moralist dictator that feed the nation what it can and cannot view in the cinemas and their television sets at home.

According to Jose Lacaba[71], the best alternative is self-regulation. There is no such thing as censorship in print media because these media outfits regulate their own. There is no governmental agency that regulates these businesses.

Actually, P. D. 1986 was created as a prelude for self-regulation. P. D. 1986 provides that at least fifteen members of the Board come from the movie and television community, and that all of its members shall have “expertise in the various areas of motion pictures and television.”[72]
However, it has been more than two decades since the promulgation of P. D. 1986 and the MTRCB is still a bane to filmmakers and artists around the Philippines. Moreover, the MTRCB, with its highly malleable conceptions, is being used by the powerful to mute the marginalized. I believe it’s about time that a change is initiated.

The words of Noam Chomsky in the beginning of the article enunciate the inevitability of change in a social system that thrives in the constraints of mysterious and questionable social laws. Chomsky suggests that if these social laws do not meet the test, they should be replaced with better ones. Two decades after the creation of the MTRCB, the movie industry is in obvious shambles (against the objectives for which the MTRCB was made) and the administrative body has become a tool for harassment and restriction of free expression. Chomsky’s words ring truest at this time.

Finally, Griswold compliments the perpetual nature of human ideas --- that inspire of being restricted, burned, and banned, these ideas will continue to blossom as it is only human for any person to search for something beyond himself and what the State allows him to view. In other words, the law should not be a blockade to this curiosity but merely serve as a guiding light in our continuing search for the right.
**************

Footnotes:
[1] See http://www.imdb.com/title/tt0108052/.
[2] Chicago Sun-Times (March 3, 1994).
[3] See http://www.imdb.com/title/tt0275735/.
[4] Tim McGirk, The President’s Scissor, Time (April, 2001).
[5] Rod. P. Kapunan, More Malice Than Legality, The Daily Tribune (September 5, 2006).
[6] Armida Siguion-Reyna, Political Censorship, Part 2, The Daily Tribune (October 14, 2006).
[7] Bayani San Diego, Jr., Censors Suspend I-Witness, Philippine Daily Inquirer (July 1, 2006).
[8] Bayani San Diego, Jr., Movie-TV Board Chides ABS-CBN’s Correspondents, Philippine Daily Inquirer (July 17, 2006).
[9] Marjorie Heins, Culture on Trial: Censorship Trials and Free Expression, 2 Insight on Law and Society (2002).
[10] 5 F.Supp. 182 (S.D.N.Y. 1933).
[11] 278 A.D. 253 (N.Y. S.Ct. 3rd Dept.), affirmed, 303 N.Y. 242 (1951).
[12] 342 U.S. 485 (1952).
[13] 380 U.S. 51 (1965).
[14] 3 Queens Bench 360 (1868).
[15] Id., 362.
[16] See United States vs. Bennett, 24 F. Cas. 1093.
[17] 209 Fed. Rep. 119 (S.D.N.Y. 1913).
[18] Id., 121.
[19] Paul Vanderham, James Joyce and Censorship: The Trials of Ulysses (NYU Press, 1998), 32-34.
[20] United States vs. One Book Entitled Ulysses, 5 F.Supp. 182,183-85 (S.D.N.Y. 1933).
[21]United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706-07 (2nd Cir. 1934).
[22] See http://www.imdb.com/title/tt0000439/.
[23] Gregory Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (Cambridge, UK: Cambridge U. Press, 1994).
[24] 236 U.S 230 (1915).
[25] Id., 242-244.
[26] Stephen Vaughn, Morality and Entertainment: The Origins of the Motion Picture Code, 77 Journal of American History, 44 (June 1990).
[27] See http://www.imdb.com/title/tt0040092/.
[28] Spellman Urges ‘Miracle’ Boycott, New York Times, Jan. 8, 1951.
[29] Burstyn v. Wilson, 343 U.S. 495, 504-05 (1952).
[30] Id.
[31]Freedman vs State of Maryland, 233 Md. 498 (1964).
[32] Freedman vs State of Maryland, 380 U.S. 51 (1965).
[33] 401 U.S. 216 (1970)
[34] See http://www.imdb.com/title/tt0061834/.
[35] Jose F. Lacaba, Notes on Film Censorship in the Philippines, Philippine Post Magazine at http://www.philpost.com/0100pages/film0100.html.
[36] See http://www.imdb.com/title/tt0086943/.
[37] Gonzalez vs. Katigbak, G.R. No. L-69500, July 22, 1985.
[38] Id.
[39] Id.
[40] Lacaba, supra note 35 citing P. D. 1986.
[41] P. D. 1986 §3.
[42] P. D. 1986 §12.
[43] Supra note 37.
[44] Victor Avecilla, Time to Abolish the MTRCB, available at http://fiftypesoninja.blogspot.com/2006/10/mtrcb-is-suxxorz.html.
[45] Id.
[46] Id.
[47] Constantino Tejero, Censorship in Philippine Movies and Television: Anathema, Sunday Inquirer Magazine Vol 5, 37-40 (1990).
[48] Ricky Torre, Censoring the Censors, Philippine Free Press Vol 85, 32-33 (1994).
[49] Ma. Eloisa Lazaro, Jesus Sison: Redirecting Censorship, Philippine Graphic Vol 7, 23 (1996).
[50] G. R. No. 119673, July 26, 1996.
[51] G. R. No. 155282, January 17, 2005.
[52] G. R. No. 148579, February 5, 2007.
[53] Isagani Cruz, Constitutional Law, 1991 ed., 176-178 states that:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul — in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. ‘Men may believe what they cannot prove.’ Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all the other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.
[54] Iglesia ni Cristo (Inc.) vs. Court Appeals, G. R. No. 119673, July 26, 1996.
[56] L-25246, September 12, 1974.
[57] Supra note 49.
[58] 41 Phil. 468 (1921)
[59] Supra note 49, Kapunan dissenting and separate opinion.
[60] c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their government and/or the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; and
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matter which are sub-judice in nature.

Provided, however, That deletions or cuts must not be made on the master negative of the films, and that such master negative shall be deposited with the Film Archives of the Philippines and shall be released for export purposes to the film owner only upon showing of the proper export permit; Provided, finally, That the film owner shall execute his own undertaking that such master negative shall be exclusively used for export purposes and not for local showing;

To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, 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 imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
[61] Supra note 49, Mendoza separate opinion.
[62] “SECTION 3. Matters subject to review – All motion pictures, television programs and publicity materials, as defined in Chapter 1 hereof, whether these be for theatrical or non-theatrical distribution, for television broadcast or general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export, shall be subject to review by the BOARD before they are exported, imported, copied, distributed, sold, leased, exhibited or broadcast by television;”
[63] “SECTION 7. REQUIREMENT OF PRIOR REVIEW – No motion picture, television program or related publicity material shall be imported, exported, produced, copied, distributed, sold, leased, exhibited or broadcast by television without prior permit issued by the BOARD after review of the motion picture, television program or publicity material.”
[64] MTRCB vs. ABS-CBN Corp., et. al., G. R. No. 155282, January 17, 2005.
[65] Id.
[66] G. R. No. 148579, February 5, 2007.
[67] Const. art. III, sec. 4.
[68] Christian Bryan Bustamante, Why Self-regulation?:A Policy Analysis on the Implementing Rules and Regulations of the Movie and Television Review and Classification Board (1998), available at http://www.geocities.com/philodept/diwatao/mtrcb_self_regulation.htm.
[69] Id.
[70] Id.
[71] Jose P. Lacaba, Censorship vs. Classification, National Midweek Vol. 2, 26.
[72] P. D. 1986 Sec. 2.