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12 Ateneo L.J. 1 (1962-1963)

handle is hein.journals/ateno12 and id is 1 raw text is: SEPTEMBER 1962 ATENEO LAW JOURNAL PROBLEMS AND PRINCIPLES TOWARD A LEGAL bEFINITION OF THE OBSCENE Joaquin G. Bernas, S.J.# When the issue of obscenity found it any medium of communication is brought before a court for adjudication, the court is faced with a di- lemma. On the one hand it must respect the freedoms of speech and the press guaranteed by the Constitution. On the other hand it must re- cognize the duty of the state to protect the public against the social evil presented by the purveyance of pornography. How avoid the two horns? Or, is the dilemma a mere figment of judicial imagination? For a judicial bystander upon whose head neither praise nor blame will fall for a decision, the problem might appear unreal, especially be- cause, in a case which has now become a landmark in American obscenity cases, the U.S. Supreme Court declared in unequivocal language that obscenity is not within the area of constitutionally protected speech or press.' To suppress what is obscene, therefore, to censor it, to prohibit it, is not a violation of constitutional freedom but a legitimate act of gov- ernment. But the judicial problem does not end thereby. The problem is merely focalized on what really is the core question of obscenity cases: WHAT IS OBSCENE? The subsequent pages will show what answer has been given to this question by the U.S. Supreme Court and by the Philippine Supreme Court and Court of Appeals. This done, an attempt will be made to isolate the roadblocks which legal development still has to hurdle.'- Ll.B. Ateneo de Manila, 1962. Roth v U.S. 354 U.S. 476 485 (1957); Alberts v. California _it, 76, 485 (1957). The same decision pronounced, as a corollary, that since obscenity is not constitutionally protected, it does not enjoy the benefits of the clear and pre- sent danger rule.' Id. 486-7. Is It is interesting to note that the U.S. Supreme Court has struck down quite a number of censorship standards for being vague or indefinite. Such for example were the standards sacrilegious (Burstyn v Wilson 343 U.S. 495 (1952), pre- judicial to the best interests of the people of said City (Gelling v Texas 343 U.S. 960 (1952), immoral (Commercial Fictues Corp v Regents 346 U.S. 587 (1954), Digitized from Best Copy Available VOLUME XII NUMBER 1