Cebu Citizens-Press Council

STATEMENT OF CEBU MEDIA LEGAL AID ON THE PROPOSAL BEFORE THE CEBU PROVINCIAL BOARD TO BAN TABLOIDS IN CEBU PROVINCE

We, members of Cebu Media Legal Aid (Cemla), which was organized under the auspices of Cebu Citizens-Press Council (CCPC), view with alarm the proposed ordinance pending with the Cebu Provincial Board that would ban tabloids in the towns and cities of the Province.

While the proponents are apparently well-intentioned, concerned about protecting community values, and Cemla rejects obscenity, we believe the proposal is unconstitutional, unnecessary, and dangerous.

UNCONSTITUTIONAL

It violates the Constitution because:

[1] It is ambiguous and misinformed.

Under the ordinance, a tabloid is erroneously defined. It classifies any small-sized and obscene paper as a tabloid. It equates tabloids with obscenity. There are tabloids that are not obscene (most community papers in the country are tabloids) just as there are broadsheets that are obscene. Its ambiguity and deceptiveness are fatal flaws in any legislation.

[2] It is prior restraint, a no-no in a democracy.

It is government ban prior to publication and circulation. Categorizing tabloids as contraband, it prohibits the sale, distribution, possession or exhibition of tabloids and similar reading materials with “immoral or indecent” content. Declaring tabloids as illegal or nuisance per se, which considers them subject to seizure, is a “content-based restraint or censorship” on freedom of speech and the press.

Restriction of circulation already constitutes censorship. How much more treating tabloids and similar reading materials as contraband or nuisance per se?

The “over-breadth doctrine” prohibits government from achieving its purpose “by means that sweep unnecessarily broadly…” Legitimate interest of government can be satisfied without going so far as to reach into “protected freedom.” Over-breadth “should be slain in sight whenever it rears its ugly head.”

Furthermore, under the Local Government Code, local governments may regulate but not prohibit activities or trades that are not illegal per se. Banning tabloids would therefore be “ultra vires,” or outside the authority
of the Provincial Board.

[3] It is a breach of the equal protection clause.

It targets tabloids mostly if not solely. While it mentions “similar reading materials” purportedly to cover the rest of the print industry, it omits broadcast (radio and TV), the cinemas, billboards, advertising vehicles, and allied sources of information, and the new media in the internet where obscenity may also be found.

The ordinance impresses us that the sole source of obscenity are only reading materials, principally the tabloids. Equal protection clause requires that laws are “implemented and applied equally and uniformly on all persons under similar circumstances…”

Can material in a tabloid be more gross than similar material in, say, internet or broadcast?

[4] It transgresses due process of law.

The ordinance allows, without prior hearing and lawful court order, confiscation and detention of tabloids and printed materials by the local government unit that finds them obscene.

By considering the reading materials obscene and contraband, government impedes and destroys legitimate business of publications, a property right that can’t be taken away without due process of law.

UNNECESSARY

[1] There are existing laws in the Revised Penal Code that prohibit obscenity, which laws have met the constitutional standard of validity.

A local government ordinance is needless unless it spells out the “aggregate sense of the community” on what is obscene, which is not necessarily what bureaucrats say is obscene.

But what is obscene? What does the community collectively see as obscene? Surely, not just how a group of functionaries defines it.

[2] The Supreme Court test before government can validly interfere with constitutionally guaranteed right of the press is whether “a clear and present danger” of the evil feared by the ordinance exists. “There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger.”

The ordinance merely assumes that because some reading materials contain a feature or features the proponents deem “sexually provocative,” the morals of the populace are already endangered.

DANGEROUS

The ordinance may be open to abuse as determination of what is obscene is left to town and city mayors who may have grudges against publications that publish adverse news or opinion.

Under both U.S. and Philippine jurisprudence, there is no clear and specific definition of obscenity. Our Supreme Court has consistently ruled that obscenity is determined by the courts, not just on the say-so of public officials or functionaries of boards or commissions.

Thus, the grave danger posed by the enforcement of the proposed ordinance.

(The volunteer lawyers of Cebu Media Legal Aid are Piedad “Bingo” Gonzalez, Fritz Quiñanola, Pedro Rosito, Elias Espinoza, Francisco Malilong Jr., Maria Dee Seares-Del Rosario, Pachico Seares, Rosemarie Versoza, Eddie Barrita, Lucille Karen Isberto, Ruphil Bañoc and Ian Manticajon.)