G.R. No. 184389 ALLAN MADRILEJOS, ALLAN HERNANDEZ, GLENDA GIL, AND LISA GOKONGWEI-CHENG, PETITIONERS, VS. LOURDES GATDULA, AGNES LOPEZ, HILARION BUBAN, AND THE OFFICE OF THE CITY PROSECUTOR OF MANILA, RESPONDENTS. November 16, 2021

DISSENTING OPINION

LAZARO-JAVIER,J.:

ANTECEDENTS

Petitioners are Allan Madrilejos, Allan Hernandez, and Glenda Gil, Editor-in-Chief, Managing Editor, and Circulation Manager, respectively, ofFor Him Magazine Philippines(FHM), with Lance Y. Gokongwei and Lisa Gokongwei-Cheng, Chairman and President, respectively, of Summit Publishing, FHM Philippines' publisher. They were among the respondents in a criminal complaint filed by pastors and preachers from various churches with the Office of the City Prosecutor, City of Manila. The complaint was docketed I.S. No. 08G-12234. It alleged, among others, that from 2007 to 2008 respondents printed, published, distributed, circulated and/or sold in the city "scandalous, obscene and pornographic" identified magazines and tabloids in violation of Articles 200 and 201 of The Revised Penal Code (RPC) andOrdinance No. 7780of the City of Manila.

Articles 200 and 201 of the RPC provide:

Article 200. Grave scandal. — The penalties ofarresto mayorand public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

Article 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty ofprision mayoror a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

3. Those who shall sell, give away or exhibit films, prints, engravings, sculptures, or literature which are offensive to morals.

On the other hand, the pertinent portions of Ordinance No. 7780 read:

x x x x

Sec. 2. Definition of Terms: As used in this ordinance, the terms:

A. Obscene shall refer toany materialoractthat is indecent, erotic, lewd or offensive, orcontrary to morals, good customsorreligious beliefs, principlesordoctrines, or toany materialor act thattends to corrupt or depr[a]vethe human mind, or iscalculated to exciteimpure imagination or arouse prurient interest, or isunfit to be seenorheard,or whichviolates the proprieties of languageorbehavior,regardless of the motiveof the printer, publisher, seller, distributor, performer or author of such act or material, such as but not limited to:

1.	Printing, showing, depicting ordescribing sexual acts;
2.	Printing, showing, depicting ordescribing children in sexual acts;
3.	Printing, showing, depicting ordescribing completely nude human bodies; and
4.	Printing, showing, depicting ordescribing the human sexual organsorthe female breasts.

B. Pornographic or pornography shall refer tosuch objects or subjectsof photography, movies, music records, video and VHS tapes, laser discs, billboards, television, magazines, newspapers, tabloids, comics and live showscalculated to exciteorstimulate sexual driveorimpure imagination, regardless of motive of the author thereof, such as, but not limited to the following:

1.	Performinglive sexual actsin whatever form;
2.	Those other than live performances showing, depicting ordescribing sexual acts;
3.	Those showing, depicting ordescribing children in sex acts;
4.	Those showing, depicting ordescribing completely nude human body, or showing, depicting ordescribing the human sexual organsorthe female breasts.

C.Materialsshall refer to magazines, newspapers, tabloids, comics, writings, photographs, drawings, paintings, billboards, decals, movies, music records, video and VHS tapes, laser discs, andsimilar matters.

Sec. 3. Prohibited Acts. — The printing,publishing, distribution, circulation, sale andexhibitionof obscene and pornographic acts and materials and the production, public showing and viewing of video and VHS tapes, laser discs, theatrical or stage and other live performances andprivate showing for public consumption, whether for free or for a fee, of pornographic pictures as herein defined are hereby prohibited within the City of Manila and accordingly penalized as provided herein.

Sec. 4.Penalty Clause: Any person violating this ordinance shall be punished as follows:

1. For printing, publishing, distribution or circulation of obscene or pornographic materials; the production or showing of obscene movies, television shows, stage and other live performances; for producing or renting obscene videos and VHS tapes, laser discs, for viewing obscene movies, television shows, videos and VHS tapes, laser discs or stage and other live performances; and for performing obscene act on stage and other live performances —imprisonment of one (1) year or fine of five thousand pesos (P5,000.00), or both, at the discretion of the court.

2. For the selling of obscene or pornographic materials —imprisonment of not less than six (6) months nor more than one (1) year or a fine of not less than one (1) thousand (P1,000.00), nor more than three thousand (P3,000.00) pesos.

Provided, that in case the offender is a juridical person, the President and the members of the board of directors, shall be held criminally liable; Provided, further, that in case of conviction. all pertinent permits and licenses issued by the City of Government to the offender shall be confiscated in favor of the City Government for destruction; Provided, furthermore, that in case the offender is a minor and unemancipated and unable to pay the fine, his parents or guardian shall be liable to pay such fine; provided, finally, thatthis ordinance shall not apply to materialsprinted, distributed, exhibited, sold, filmed, rented, viewed, or producedby reason of or in connection with or in furtherance of scienceandscientific researchandmedical or medically related art, profession, and foreducational purposes. (Emphases supplied.)

Meantime, the Office of the City Prosecutor formed a panel of prosecutors to conduct the preliminary investigation. While it was ongoing, petitioners filed the present petition which, in the words of theponenciaof Honorable Associate Justice Francis H. Jardeleza (now retired) is premised "on the ground that Ordinance No. 7780 isinvalid on its facefor being patently offensive to their constitutional right to free speech and expression, repugnant to due process and privacy rights, and violative of the constitutionally established principle of separation of church and state."

In so many words, petitioners themselves described the present petition as both anas-appliedand afacialchallenge to the validity of Ordinance No. 7780.^[1]Petitioners prayed for a writ of prohibition restraining the conduct of the preliminary investigationanda declaration nullifying the Ordinance and enjoining its implementation.

As aptly summarized in theponencia, petitionersparticularizedtheiras-appliedandfacialchallenge to the constitutionality of Ordinance No. 7780 by -

x x x alleging that [Ordinance No. 7780] defines the terms "obscene" and "pornography" in such a way thata very broad range of speech and expression are placed beyond the protection of the Constitution, thus violating the constitutional guarantee to free speech and expression.Specifically, petitioners take issue with the "expansive" languageof Ordinance No. 7780which, petitioners claim,paved the way for complainants, a group of pastors and preachers, to impose their viewof what is "unfit to be seen or heard" and "violate[s] the proprieties of language and behavior."^[2]x x x Petitioners' arguments are facial attacks against Ordinance No. 7780 on the ground of overbreadth.

x x x x

The Office of the City Prosecutor filed its own Comment on the petitionarguing in the strongest terms possible in favor of the constitutionality of the assailed Ordinance.

Meanwhile, the Office of the City Prosecutor issued Resolution dated June 25, 2013 dismissing the charges for violation of Article 200 and Ordinance No. 7780 but ordering the filing of an Information for violation of Article 201 (3) of the RPC. The pertinent portion of the Resolution, as quoted in theponencia, reads:

x x x x

If the act or acts of the offender are punished under another article of the Revised Penal Code, Article 200 is not applicable. Considering that the subject matter of the complaint is the obscene publication under Article 201 of the Revised Penal Code, [petitioners] should not be liable for Grave Scandal; hence, the complaint for Grave Scandal should be dismissed.

On the other hand, considering that the subject matter covered by the city ordinance of Manila is likewise the printing, publication, sale, distribution and exhibition of obscene and pornographic acts and materials, it is already absorbed in Article 201 of the Revised Penal Code and the complaint for violation of the city ordinance should likewise be dismissed.

x x x x

Any person who has something to do with the printing, publication, circulation and sale of the obscene publications should be made liable. Hence, except for respondents Eugenio Lopez III, who was charged being the Chairman of the Board of ABS-CBN Publishing, Inc., Ernesto M. Lopez, being the President of the said publishing company, Lance Y. Gokongwei and Lisa Y. Gokongwei-Cheng, being the Chairman of the Board and President, respectively of Summit Publishing, their actual knowledge, consent, and/or participation in the obscene publications not having been clearly established by the evidence, said respondents should not be made liable thereto. However, all the other respondents being persons responsible for the publication, circulation and sale of the subject obscene publications should be made liable thereto.

All the other respondents, either being the Editor-in-Chief, Managing Director, General Manager or Circulation Manager of their respective publishing companies should be made liable for Violation of Section 201 paragraph 2(a) of the Revised Penal Code.

x x x x

The criminal case against petitioners for violation of Article 201 (3) of the RPC was docketed Criminal Case No. 13-30084 and raffled to Branch 16 of the Regional Trial Court (RTC), City of Manila.

Theponenciafurther recounted: "Despite thedismissal of the charge for violation of Ordinance No. 7780, petitionersdid not move to withdraw the present action, adamant that the Ordinance 'violates the constitutional guarantees to free speech and expression, violates the right to due process, and offends privacy rights." (Emphasis supplied.)

Back to Criminal Case No. 13-30084, the same was ordered dismissed with prejudice, upon petitioners' motion on account of the People's failure to prosecute.

THE COURT'S RULING

Theponenciadismissed the present petition on the following grounds:

(1)	The dismissal of the criminal charges against petitioners for violation of the provisions of Ordinance No. 7780 has rendered this case moot and academic.

One. Theponenciacharacterizedthe present petition as one "for prohibition with prayer for theissuance of a preliminary injunction and/or temporary restraining order, seeking toprevent respondentsfrom carrying out thepreliminary investigationof the criminal complaint entitledAbante, et al. v. Asumbrado, et al., docketed as I.S. No. 08G-12234,on the groundthat Ordinance No. 7780 isunconstitutional." Thischaracterizationis clarified by theponencia's understanding of the petition'ssole thrust, which " ... wasto stop the conduct of the preliminary investigationinto their alleged violation of an unconstitutional statute — a process that concludes with an Order whether or not to indict petitioners," and inferentially, of theunconstitutionalityof Ordinance No. 7780 as atoolmeantmerely to terminatethe preliminary investigation of the criminal complaint against petitioners. Therefore, as theponenciaruled, with thedismissalon preliminary investigation of the complaint forviolation of the Ordinance(along with Article 200 of the RPC) and during the trial of the criminal case for violation of Article 201 (3) of the RPC, itshould followthat theoutcome of the present petitionas to theunconstitutionalityof the Ordinance would haveno practical use or valueto petitioners.

Two. Theponenciadefined a"moot and academic case"as "one thatceases to present a justiciable controversyby virtue of supervening events, so that adeclarationthereon would be ofno practical use or value." Amoot case lacks "actual controversiesinvolving rights which are legally demandable and enforceable x x x" without which courts haveno jurisdictionto act.

Theponencia, however, didnotexplain (at least in this section) why an actual controversyhad ceasedto exist after the dismissal of the criminal case and why thedeclarationsought by petitioners would havenopractical use or value to them or those similarly situated.

Instead, theponenciawent on to explain why theexceptionto the general rule that this Courtshould declineto act uponmootcases –the case is capable of repetition yet evading review.

Theponenciaexplained that this exception hastwo (2) requisites:(1)the challenged action wasin its duration too short to be fully litigated prior toits cessation or expiration, and(2)there was areasonable expectationthatthe same complaining partywould besubjected to the same action again. Theponenciaruled that neither of these requisites applied to the present petition.

Theponenciaheld that thepreliminary investigationwhich the present petition sought to stop didnotinvolve avery short duration:

In this case, it must be noted that petitioners' purpose in filing the present action was to stop the conduct of the preliminary investigation into their alleged violation of an unconstitutional statute — a process that concludes with an Order whether or not to indict petitioners.Relatedly, and as it happened in this case, such an Order, if and when issued, is not of such inherently short duration that it will lapse before petitioners are able to see it challenged before a higher prosecutorial authority (i.e., the Department of Justice) or the courts. In fact, and unless reversed by the Secretary of Justice or by the courts,an order to indict does not lapse. Thus,the time constraintthat justified the application of the exception inSouthern Pacific Terminal Co. v. ICC^[3](two-year validity of an Interstate Commerce Commission (ICC) cease and desist order) andRoe v. Wade^[4](266-day human gestation period)does not exist here.

It also ruled that there wasno reasonable expectationthatpetitionerswould besubjected to the same action againbecause:

x x x whenthe criminal charges against petitioners were dismissed with prejudice, they can no longer be refiledwithout offending the constitutional proscription against double jeopardy. Petitioners havealso failed to demonstrate a reasonable likelihood that they will once again be hailedbefore the Office of the City Prosecutor of Manila (OCP) for the same or another violation of Ordinance No. 7780. It should be noted thatthe OCP Manila did not even question the dismissalof the case. There is likewiseno showing that the pastors and preachers who initiatedthe complaint herefiled, orhave threatened to file, new chargesagainst petitioners,over new material publishedin FMH Philippines alleged to be obscene, after the case below was dismissed as early as July 19, 2016.

Theponenciatook an exacting interpretationof the second requisite. The Court requiredreasonable expectationor ademonstrated probabilitythatthe same complaining partywould besubjected to the same action again. This second element ismissingif it werehighly speculativeandhypothetical, orhighly doubtfulif he or she can demonstrate asubstantial likelihood, thatthe same complaining partywould besubjected to the same action again.

This ruling stressed that this second element may refer tohistorythat it wasnot far-fetchedthatthe same complaining partywould besubjected to the same action again. Anaffair of annual occurrenceis one where thereexistsareasonable expectationthatthe same complaining partywould besubjected to the same action again.

(2)	Ordinance No. 7780, an anti-obscenity law, cannot be facially attacked on the ground of overbreadth because obscenity is unprotected speech.

One.Theponenciaheld that petitioners'facialchallenge based on the overbreadth doctrine wasimproperbecause this ground appliedonlytofree speech cases– which the present petition wasnot. According to theponencia, as this petition stemmed from anobscenityandacriminal prosecution, suchfacialchallenge isnot available. (Emphasis supplied)

Theponenciaexplained –

First, afacialoverbreadth challenge islimitedto cases involvingprotected speech, andobscenityisnot a protected speech. Theponenciajustified this conclusion by holding that "laws that regulate or proscribe classes of speech falling beyond the ambit of constitutional protection cannot, therefore, be subject to facial invalidationbecause there is no 'transcendent value to all society' that would justifysuch attack." (Emphasis supplied)

And,second, afacialoverbreadth challenge doesnotapply even to vague and overbroadpenal statutessince the latter haveno possible "chilling effect" upon protected speech.^[5]Thus:

x x x The theory is that "[w]henstatutes regulate or proscribe speechandno readily apparent construction suggests itselfas a vehiclefor rehabilitating the statutes in a single prosecution, thetranscendent valueto all societyof constitutionally protected expressionisdeemedtojustify allowing attacks on overly broad statuteswithno requirementthat theperson making the attackdemonstrate that hisown conduct could not be regulatedby a statutedrawn with narrow specificity." Thepossible harm to societyin permitting some unprotected speech to go unpunished isoutweighed by the possibilitythat theprotected speech of others may be deterredand perceived grievances left to fester because ofpossible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effectresulting from their very existence, and,if facial challenge is allowed for this reason alone, the State may well be prevented from enacting lawsagainst socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

Theoverbreadth and vagueness doctrines then have special application only to free speech cases. They areinapt for testing the validity of penal statutes. As the US Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." x x x

In sum, thedoctrines of strict scrutiny, overbreadth, and vaguenessare analytical tools developedfor testing "on their faces" statutes in free speech casesor, as they are called in American law, First Amendment cases. Theycannot be made to do service when what is involved is a criminal statute. With respect tosuch statute, the established ruleis that"one to whom application of a statute is constitutionalwillnot be heard to attackthe statute on thegroundthat impliedly it mightalso be taken as applying to other persons or other situations in which its application might be unconstitutional." (Emphases supplied)

x x x x

Theponenciafurther affirmed the rule that "onlystatutes on free speech, religious freedom, andother fundamental rights may be facially challenged. Undernocase mayordinary penalstatutes besubjected to a facial challenge. Therationaleis obvious. If afacial challengeto a penal statute is permitted, theprosecution of crimes may be hampered. No prosecution would be possible."

Two. TheponenciathencharacterizedOrdinance No. 7780 as acriminalorpenal statutethatcriminalizesorpenalizesanunprotected speech–obscenity. As thuscharacterized, this Court ruled that the Ordinancecannot be challenged on its face.

Onobscenitybeing anunprotectedspeech, theponenciaexpounded:

It was in 1942 when the US Supreme Court first held in the landmark case ofChaplinsky v. New Hampshire^[6]that the lewd and the obscene are not protected speech and therefore falls outside the protection of the First Amendment. x x x These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed thatsuch utterances are no essential part of any exposition of ideas, and areof such slight social value as a step to truththat any benefit that may be derived from them is clearly outweighed by thesocial interest in order and morality.

Beginning fromRoth v. United States^[7](implicit in the history of the First Amendment is the rejection of obscenity) to Miller v. California, (this much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment), the US Supreme Court has invariably held that obscene materials do not come under the protection of the First Amendment x x x

As earlier stated, this Court has long accepted Chaplinsky's analysis that obscenity is unprotected speech. In 1985, We held, in the case ofGonzalez v. Katigbak,^[8]thatthe law on freedom of expression frowns on obscenity.
x x x

x x x But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. (Emphases supplied)

x x x x

Three. Theponenciaheld thatwhilepetitioners hadno rightto assail a law that regulates unprotected speech, such as Ordinance No. 7780, using afacialchallenge, they may do soas-applied,viz:

This is not to suggest, however, that these laws are absolutely invulnerable to constitutional attack.

A litigant who stands charged under a law that regulates unprotected speech can stillmount a challenge that a statute is unconstitutional as it is appliedto him or her. In such a case, courts are left toexamine the provisionsof the lawallegedly violated in light of the conductwith which the litigant has been charged. If the litigant prevails, the courtscarve away the unconstitutional aspects of the lawby invalidating its improper applicationson a case to case basis. (Emphases supplied)

Theponenciaoutlined the steps in assailing the Ordinanceas-applied.

Anas-appliedchallenge would require petitioners togo to trialto allow the trial court to determine whether "the materials complained of as obscene were indeed proscribed under the language of Ordinance No. 7780." This might also entail theadoption of theMiller^[9]standardsif petitioners raise them as a defense:

x x x x

(a) whether "theaverage person, applyingcontemporary community standards" would find that the work,taken as a whole, appeals to theprurient interest; (b) whether the work depicts or describes, in apatently offensive way, sexual conductspecifically defined by the applicable state law; and(c)whether the work,taken as a whole, lacks serious literary, artistic, political, or scientificvalue.

The next steps in theas-appliedchallenge would be as follows:

x x x petitioners could argue based on theMillerstandardsas appliedto the specific material over which they were being prosecuted, they should be acquitted.

On the other hand, the trial court, assuming it adopts Miller, will then have to receive evidence and render opinion on such issues as to: (a) who is the "average" Filipino; (b) what is the "community" against which "contemporary standards" are to be measured; (c) whether the subject material appeals to the "prurient" interest; (d) whether the material depicts "patently offensive" sexual conduct: and (e) whether the material "taken as a whole" has serious value.

The decision of the RTC, whether or not in favor of petitioners, may then be brought up on appeal to the Court of Appeals (CA), whose decision may later on be brought to this Court for review. Such is the process observed by the US Supreme Court in all of the obscenity cases cited by theponenciawhich led to the adoption of the Miller standards in the US. The cases, including Miller, all involved appellate review conducted with the benefit of a full record.

x x x x

Theponenciastressed thatnoneof the cases challenging anti-obscenity laws involved afacialattack on the ground of overbreadth. It also rejected, on separation of powers rationale, petitioners' plea to superimpose theMillerstandards on Ordinance No. 7780, thus:

x x x x

We stress at this point that the Court in Miller did not impose that the standards it laid down be legislated. On the contrary, the Court there was very careful not to overstep its judicial boundaries:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion,supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

In fact, Miller explicitly held that theobscene conductdepicted or described in materials which issought to be regulated "must be specifically defined by the applicable state law, as written or authoritatively construed." x x x Accordingly,whether a material is obsceneor not is stillfor the Court to decide as it applies or construes a specific statute in a particular case.

x x x x

Finally, x x xas applied to the actual facts of the caseis theproper precedent to followif the Court wereto consider adopting the Miller standardin our jurisdiction. Thus, and until the proper case presents itself, prudence dictates that the Court should exercise judicial restraint.

x x x x

Petitioners moved for reconsideration of thedismissalof the petition. The Resolution penned by the learned Honorable Chief Justice Diosdado M. Peralta affirmed the dismissal by reiterating theponencia's rationale.

Since 2018, FHM has shifted frompaper-basedtodigital publications.^[10]There isno reasonto believe that this shift has exempted petitioners as publishers and distributers of these magazines indigital formatfrom the coverage of Ordinance No. 7780. If at all, this shift may havefar worse adverse implicationsupon them due to Section 6 of RA 10175 (2012),Cybercrime Prevention Act of 2012, which states:

SECTION 6.All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologiesshall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higherthan that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

MY RESPECTFUL DISSENT

I joined theponenciawhen the case wasfirstdecided. My vote was based on my assessmentthenof the cogency of itsratio decidendi.

On petitioners' motion, however, and after a more introspective analysis of the arguments raised in my senior colleagues' respective Opinions and relevant case law both new and old,I now vote to grantthe petition andto declareOrdinance No. 7780 asunconstitutional.

A. The Issues

The dispositive issues are:

One. Is the petition afreedom of expression(orfree speech) case?

Two. Has the petition seeking to declare Ordinance No. 7780 as unconstitutional been renderedmoot–

1. When, after preliminary investigation, the criminal complaint for violation of Ordinance No. 7780 (along with Article 200 of the RPC but upon another ground) was dismissed per Resolution dated June 25, 2013 of the OCP of Manila, since "the subject matter covered by the city ordinance of Manila is already absorbed in Article 201 of the Revised Penal Code."

2. When, during the trial, Criminal Case No. 13-30084 for violation of Article 201 (3) of the RPC was dismissed with prejudice upon petitioners' motion due to the People's failure to prosecute?

Three. May Ordinance No. 7780 bechallenged on its faceon the ground ofoverbreadththough it is apenalstatute that seeksto punish alleged obscene and indecent expressions?

Four. If Ordinance No. 7780 may be challengedfacially, does Ordinance No. 7780on its faceviolate freedom of expression for beingoverbroad; and as acontent-based criminalization, thestrict scrutiny test?

Five.As appliedto petitioners, did Ordinance No. 7780 violate their freedom of expression when it sought to prohibit and penalize their acts of printing, publishing, distributing, circulating and/or selling certain identified issue of their FHM Magazine?

B. My Submissions

It is my respectful submission that thepitfallsin the originalponenciastartedwith itscharacterizationof the petition asnot beingafreedom of expressionorfree speechcase, and itsapproachtolumpOrdinance No. 7780together with penal lawsthat hasnothing to dowithexpression.

Theponenciaheldthat this case isnotaboutfree speechbecauseobsceneexpression isunprotected speech. This, however,begs the question.

The petition was initiatedprecisely to testwhether indeed Ordinance No. 7780impacts on expression, andif it does, whether itonly penalizes obsceneexpression or includes within its ambitprotectedspeech. Toat once concedethat the assailed Ordinance isall about obscenitiesis toassumethetruthfulnessof theissuesthatin the first placeare precisely thesubject of the petition.

Thecharacterizationof the petition asnotbeing a free speech case iserroneousbecause thesubject matter of Ordinance No. 7780–materialsoractssuch asphotography, movies, music records, video and VHS tapes, laser discs, billboards, television, magazines, newspapers, tabloids, comicsandlive shows– is a form ofspeechorexpression, and the assailed Ordinancepunishes on its facetheprinting, publishing, distributing, circulatingand/orsellingof these materials or actson accountof their respectivecontentsormessages.

Thematerialsoractssubject of Ordinance No. 7780 are forms ofspeechorexpressionsince they eachintend to convey a particularized message, and each of the messages they intend to convey ismost likely to be understood as suchby those who heard, read, or viewed it.^[11]

Here, theparticularized messagestargeted by the Ordinance areindecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior. As stated, this Ordinancepunishes on its facetheprinting, publishing, distributing, circulatingand/orsellingof these materials or actson accountofthesecontentsormessages.

It is accepted that:

x x x x

TheFirst Amendment literally forbids the abridgment only of"speech,"but we have long recognized that its protection does not end at the spoken or written word. While we haverejected"the viewthat an apparentlylimitless variety of conduct can be labeled 'speech' wheneverthe person engaging in the conductintends thereby to express an idea," wehave acknowledgedthatconductmay be "sufficiently imbued with elements of communication to fall within the scope of the Firstand FourteenthAmendments." x x x Hence, we haverecognized the expressive natureof students' wearing of black armbands to protest American military involvement in Vietnam, of a sit-in by blacks in a "whites only" area to protest segregation; of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam; and of picketing about a wide variety of causes.^[12](Emphasis supplied)

x x x x

Here, the petitionchallengesOrdinance No. 7780preciselybecause itseeks to controlbycriminalizingtheexpressionsof petitioners and those similarly situatedbecauseof thecriminalized meaningsthe expressions convey.

Note that laws regulatingspeechorexpressionare classified as eithercontent-basedorcontent-neutral. For this reason,challengestosuch lawsaretreatedandanalyzedasfree speechcases.

Content-neutrallaws involve regulations that impact upon thetime, place,andmannerof the expression or thesecondary effectsof the speech andonly minimallythemessageormeaningconveyed or imparted. Ordinance No. 7780 isnotacontent-neutralpenal law because it hasnothing to do withthe time, place, and manner of the subject-matter expression or its secondary effects.

On the other handcontent-basedlaws target speech based on itscommunicative content.^[13]These laws askwhat the subject materialsoracts communicateasmeaningsandwhat punishmentsorregulationsare to beimposedthesematerialsoracts on account ofthesemeanings. Stated differently, thetestto determine whether a government regulation iscontent-basedis as follows:

x x x x

Government regulation of speech iscontent basedifa law applies to particular speechbecause ofthetopic discussedor theidea or message expressed. This common-sense meaning of the phrase "content based" requires a court to considerwhether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys.^[14]

x x x x

As held inSurvivors Network of Those Abused by Priests, Inc. v. Joyce,^[15][a] statute 'wouldnot be content neutralif it wereconcerned with undesirable effectsthat arise from 'thedirect impact of speech on its audience' or '[l]isteners' reactions to speech."' To illustrate:

In Boos, a District of Columbia provisionbanned display of any sign within 500 feet of a foreign embassy which tended to bring the foreign government into ''public odium" or ''disrepute."485 U.S. at 315 (internal quotation marks omitted). The Court decided thatthe District's law was content based and unconstitutional, forits ban on sign displays sought to regulate "speech due to its potential primary impact"– that is theeffect"that speech has on its listeners."Id. at 321, 329. Because the law sought "'to protect the dignity of foreign diplomatic personnelby shielding them from speech that is critical of their governments," it was content based.^[16]

To elucidate further, a rule is "content-basedon its face" if itdefines several terms based on the messagethe material or act conveys, and thensubjects each message or category of messageto different restrictions,^[17]or in this case,to different criminal penalties.

Ordinance No. 7780's ban on allegedly indecent and obscene materials and acts isobviously designed to protect againstthese materials and acts' "potential primary impact." The Ordinance thus seeks to criminalize theirprinting, publishing, distributing circulatingand/orselling. Some of the messages which petitionersseek to communicatemay well be considered indecent and obscene by their target audience. The very topics which petitioners wish to address, including eroticism, sexuality, sex stories, sexual abuse, women and LGBTQ rights, sectarian and religious beliefs and quirks, fashion, anything and everything that a readermay not findin broadsheets andregularpublications, canelicit strong emotional responseswhether from the religious (such as thecomplainants against petitioners), church members, victims of abuse and their supporters, those erotically inclined, or any other member of the public. Othersmay take exceptionto the materials or acts demonstrations, othersmay acceptandembracethemessages– the fact remains that thecontrolsought by the Ordinance emanates from the materials and acts' respectivecommunicativeactualandperceivedintent.

Once a law isdeterminedto be eithercontent-basedorcontent-neutral, itnecessarily followsthat theanalysisin thechallenge to that lawwould have to take account of thestandardsinherent infree speechcases.

Ordinance No. 7780 is thus acontent-basedcriminal prohibition. It operates upon thematerialsoractstherein mentionedprecisely becauseof thetopic they discussorthe idea or message they express. This Ordinancedraws distinctionson what iscriminaland what is notcriminalbased on themessagea speaker conveys. As stated, thecriminal messagesareindecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior. The Ordinancepunishes on its facetheprinting, publishing, distributing, circulatingand/orsellingof materials or acts that convey thesecontentsormessages.

The petition seeks to declare Ordinance No. 7780 because of itsadverse impacton petitioners' free expression as acontent-basedcriminal law. Theanalysisof the arguments raised in the petitionnecessarily calls forthe application offree speechstandards. Torejectthis petition as a free speech case is toundermineprogressivegenerations of human rights jurisprudenceon theright to free expression.

Additionally, thecharacterizationof the petition asnota free speech case isespecially problematicsince'"[i]n evaluating thefree speech rights of adults,' the Supreme Court has "made it perfectly clear that 'sexual expressionwhich isindecentbut not obscene isprotected by the First Amendment."'^[18]To illustrate,nude dancingof a certain type isexpressiveconduct, so that "any ordinance regulating nude dancingmust beanalyzedto ensure it doesnot unduly impairtheexercise of First Amendment rights."^[19]

To repeat, theholdingthatordinancesaimed atregulating adult entertainment businessesmay constitutecontent-basedorcontent-neutralregulations^[20]seriouslyandnecessarily impliesthat such ordinances must bereviewedasfree speechcases.

It isof course truethatobsceneexpressions arebeyondthe succor of theright to expression. But,beforewe may even reach theconclusionthat Ordinance No. 7780penalizes only speech outsideof constitutionalprotection, which in this case would beobscene, and is therefore,constitutionally permissible, wemust first examinethe Ordinance from the perspectives offree speech.

In other words: wemust treatthe petition as afree speechcase. Thus: Is the Ordinance one thatimpacts on expression? And because the Ordinance does, is it acontent-basedor a content-neutralprohibition? Here, I have explained that the Ordinance is acontent-basedprohibition. Further: Whatinjurieshave beencausedtopetitioners' expression? Do theseinjuries persist? Or have they beenmooted? May theseinjuriesbe stillremediedthrough this petition? How do wetestthevalidityof thecriminal punishmentof expression as specified in the assailed Ordinance? And, what is theresultof theapplicationof theappropriate test?

Free speechcases allow bothon-its-face challengeandas-applied challenge. Afacial challengeallegesoverbreadthand as a resultcovers instancesorillustrative incidentsthat may not be the petitioner or plaintiff's own situation or situations. The offending law may beinvalidatedon the ground ofoverbreadth– this is because thechillingeffect on one's expression is aninjury-in-factin free speech cases^[21]that may beremediedby theinvalidation.Content-basedregulations of expression arepresumptively unconstitutionaland may bejustified onlyunderstrict scrutinyif the government proves that they arenarrowly tailoredto servecompelling state interests.

This Court's ruling alsoerredinlumpingOrdinance No. 7780together with penal lawsthat havenothing to dowithexpression, such as the criminal law againstplunderreferred to in theponencia's citations.

Withutmost respect, this approach iserroneoussincelaws that impact on free expressionareanalyzed differentlyfromother penallaws. Thus, inAmerican Civil Liberties Union v. The Florida Bar:^[22]

x x x As this court stated inFire Fighters:

The injury requirement is most loosely applied--particularly in terms of how directly the injury must result from the challenged governmental action--where First Amendment rights are involved, because of the fear that free speech will be chilled [*1494] even before the law, regulation, or policy is enforced.

922 F.2d at 760 (citing Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985) [**25] (allowing pre-enforcement challenge to local ordinance based on the First Amendment); Eaves, 601 F.2d 809). Schack'sfear of disciplinary action was reasonableand thus, theharm he suffered was an objective chillof his First Amendment rights.

x x x x

Further:

x x x x

This is precisely the approach taken by the Third Circuit in Stretton, 944 F.2d 137. There, a judicial candidate brought apre-enforcementchallengeto a section of Pennsylvania's Code of Judicial Conduct that bars judicial candidates from announcing their views on disputed legal or political issues. Theplaintiff alleged a chill of his protected speech rightsand the disciplinary authorities disclaimed that the proposed speech would violate the canon.Nevertheless, the court held that a case or controversy existed. The court wrote:

The Boards take the position here as they did in the district court that the topics plaintiff proposes to discuss in the course of his campaign do not violate the Code. The Boards, however, do not have the final word [**32] on interpretation of the Code. Moreover,plaintiff has also challenged the Canon on overbreadth grounds andmay maintain the action on that basis. See Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 484, 109 S. Ct. 3028, 3037, 106 L. Ed. 2d 388 (1989)^[23](Emphasis supplied)

Theponenciacorrectly defined a"moot and academic case"as "one thatceases to present a justiciable controversyby virtue of supervening events, so that adeclaration thereonwould be ofno practical use or value." Amoot case lacks "actual controversiesinvolving rights which are legally demandable and enforceable x x x" without which courts haveno jurisdictionto act.

I respectfully beg to differ.

a. The Doctrine of Mootness is inapplicable.

Thedoctrine of mootnessisintimately connectedwith theinterrelated requirementsofstanding, injuryandcase and controversy. This is becauseonly if an actual controversy ceases to existat any stage of litigationwould the casebecomemootand should be dismissed.^[24]Hence, ifstanding, injuryandcase and controversyhave been established to exist andcontinues to exist, itnecessarily followsthat the case isnot moot.

Thecase or controversy requirementmust be met throughout the entirety of the proceedings.^[25]Whether anactual and live controversyexists over the constitutionality of a law, when a party brings apre-enforcementchallengeora challengeafter-the-fact, that is, when the government hasvoluntarily ceasedthe challenged conduct, the courtmustaskwhether"the conflicting parties present a real, substantialcontroversywhich is definite and concrete rather than hypothetical and abstract."^[26]

In orderto provethat areal and substantialcontroversyexists, a plaintiffmustshow "a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement."^[27]

On the other hand, to havestanding, a plaintiff must (1) havesuffered aninjury in fact, (2) that isfairly traceable to the challenged actionof the defendant, and (3) that willlikely be redressed by a favorable decision.^[28]

Standingandcase and controversydepend upon, among others, the existence andcontinued existenceof aninjury in fact. Where the case points to thesethree (3) items, itcannot be saidthatmootnessadversely impacts on the case.

Here, thedismissalof the complaint for violation of Ordinance No. 7780 onpreliminary investigationand thedismissalon trial of the criminal case for violation of Article 201 (3) ofThe RPCdid not stopthe injury-in-fact to petitioners,did not endthe enforceability of the Ordinance, anddid not render ineffectualthe declaration of the Ordinance as void for being unconstitutional. It must be stressed that the instant petition isnot just about halting the criminal proceedingsagainst petitionersbut also involves making sure that the criminal proceedings do not happen againand thatpetitioners are not ever chilled, unsettled, alarmed, petrified, andterrifiedin making the speech or expression they have been doing. In sum,these matters clarifywhy the case hasnotbeen rendered moot and isnotmoot, and why petitioners haveretained their standingand arestill entitled to seek reliefon judicial review.

i. Injury-in-fact and Case and Controversy

In apre-enforcementchallenge, when a plaintiff has stated that he or she "intends to engagein a specific course of conduct 'arguably affected with a constitutional interest,' he or she "does not have to exposehimself [or herself]to enforcementto be able to challenge the law. If theinjury is certainly impending, that isenough."^[29]

Thus, a plaintiff has "suffered an injury in factif he or she(1)has an "intention to engagein a course ofconduct arguablyaffected with aconstitutional interest, (2) his or herintended future conductis 'arguably . . . proscribedby [thepolicy in question],' and (3) thethreat of future enforcementof the [challenged policies] issubstantial."^[30]

In a challengeafter-the-fact, that is, when the government hasvoluntarily ceasedthe challenged conduct,as in here, alive case or controversyremains if there issome possibilitythat "the defendantswill seek to enforcethe challenged regulation." This is the caseif, as in thepresent case, theprosecutors continue to assertthat, despite their acquiescence in thedismissalof the complaint for violation of Ordinance No. 7780, thelatterisconstitutional.^[31]Thisassertionof theprosecutorsis found in theCommenttheyfiledagainst the present petition.

Therefore, I haveno reason to think that Ordinance No. 7780 would not be enforced againin the future against petitioners or others similarly situated.^[32]This isbecause neitherthe prosecutors at the Office of the City Prosecutor in the City of Manilanorany panel to be constituted by that office isboundby theResolutiondated June 25, 2013.More, the panel of prosecutors that investigated the criminal complaint against petitioners isnotthe final arbiter of whether a violation of the Ordinancecannot be pursuedsimultaneously with a charge for violating Articles 200 and 201 ofThe RPCas was resolved in the preliminary investigation against petitioners.

Anabsolute barfromany re-filingof similar criminal complaintswould mootthis case.^[33]Unfortunately, however, thatbarisnot yet in place. The "[v]oluntary cessationof challenged conduct"mootsa case "only ifit is 'absolutely clearthat the allegedlywrongful behavior could not be reasonably expected to recur."' Certainly, thecontinuing existenceof the unaltered Ordinance No. 7780 and the Office of the City Protector'scontinuous assertionof its constitutionality and enforceabilitydo not make it "absolutely clear"that the Office of the City Prosecutor willnotchange its mind as expressed in itsResolutiondated June 25, 2013.^[34]

ii.	Injury-in-fact, Case and Controversy and Causation (fairly traceable to defendant's action)

There is areal and immediate fearofindictment andprosecution against petitioners, together with theircollateral negative effectsofagain violatingandchillingtheirright to free speechwhen the Office of the City Prosecutoragain accepts a criminal complaintfor violation of Ordinance No. 7780 against petitioners or those similarly situated,entertains the criminal complaintbyforming a panel of prosecutorstointerrogatethem andresolvethe criminal complaint, andfilesandprosecutesthe Information against them for violating the Ordinance, with the trial courtissuing warrants for their arrest, requiring bailfor their continuous appearance,limitingtheir right to travel or movement, andentering criminal recordsunder their respective names.

The same facts – thecontinuing existenceof the unaltered Ordinance No. 7780 and the Office of the City Prosecutor'scontinuous assertionof theconstitutionalityandenforceabilityof Ordinance No. 7780 –representa"very real, and very fearsome, possibilityof [acriminal complaintand]prosecution," and"ample demonstration that [petitioners'] concern with[criminal complaintandprosecution]has not been 'chimerical."^[35]To be sure,past enforcementof speech-related laws and thecontinuing assertions of their validityandenforceabilitycan legitimately assureinjury-in-fact.^[36]

As held inAmerican Civil Liberties Union v. The Florida Bar,^[37]alive caseorcontroversy continues to existwhere "plaintiffs 'wanted to pursue a specific course of actionwhich they knew was at leastarguably forbiddenby the pertinent law';and(2) "all that remainedbetween the plaintiff andimpending harmwas thedefendant's discretionarydecision –which could be changed– to withhold [enforcement]."

American Civil Liberties Union v. The Florida Barfurther notes that the United States Supreme Court has held that acase or controversy remainsafter a defendantvoluntarily ceasesan alleged improper behaviourbut is free to resume it at any time, a situation that often arises when the parties enter into avoluntary dismissalof the action to which thedefendant is not bound–as in this.

This situation could result inhardshipandabsurdity. If the defendantresumes the harmfulactivity, and plaintiffgoes back to court, the defendantcan again cease to engage in the harmful conductandarguethat the case ismoot. To address this hardship and absurdity,American Civil Liberties Union v. The Florida Bar cited United States v. W.T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) and held that in this situation, the only way the case would be renderedmootis if "thedefendant can demonstratethat there isno reasonable expectationthatthe wrong will be repeated."

Here, thewrongthat wouldreasonably be repeatedis thecontinuous assertionby the Office of the City Prosecutor thatOrdinance No. 7780isconstitutionalandenforceableas well as thecontinued enforcementof the assailed Ordinance. Because it isnot boundby the dismissal of the criminal complaint against petitioners in other criminal complaints, areasonable expectationexists thatthis wrong will be repeated. Thisstraightforward assertionofconstitutionalityandenforceabilitywould beenough to chill speechand wouldcauseandperpetuatethe aforementionedcorrelative negative consequences. These constitute petitioners'injury-in-factthat would thenestablishthelive case or controversyin the presentfree speech case.

InWillson v. City of Bel-Nor,^[38]the plaintiff was charged with a violation of a sign-regulation ordinance, and as a result, sought an injunction against the charge and a declaratory relief against the sign-regulation ordinance. But before this action could be resolved, the Citynolle prosequithe Information. The courtheldthat thenolle prosequiof the Informationdid not mootthe case for injunction and declaratory relief. It explained:

x x x "Acase becomes mootif itcan be said with assurance that there is no reasonable expectationthat theviolation will recuror if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004). "Theheavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (internal quotation marks omitted)." Here, there isno change to the Ordinanceand the Court findsPlaintiff is still in violation of it.

x x x x

As inWillson, respondentsdidnotdischargetheir burdenof proving that thechallenged conduct cannot reasonably be expected to start up again. Actually, respondentscould not have dischargedthisburdenbecause they haveconsistently assertedtheconstitutionalityandenforceabilityof Ordinance No. 7780.

InCity of Erie v. Pap's A.M.,^[39]the United States Supreme Courtrejectedthe claim that the case for injunction and declaratory relief as regards an anti-nudity ordinance has beenmootedby theclosure of the subject establishmentoffering public nudity. This is because: (1) the establishment was then "still incorporated under Pennsylvania law, andit could again decide to operatea nude dancing establishment in Erie;" and (2) the City that enacted the ordinance would besuffering an ongoing injurybecause itlostthe court case in the Pennsylvania Supreme Court and as a result would bebarred from enforcing the public nudity provisions of its ordinance. Therespective interestsof the nudity establishment, the City, and the administration of justice itselfdemandedaresolutionof the case of injunction and declaratory relief to itsfinality:

x x x If thechallenged ordinance is found constitutional, thenErie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. AndPap's still has a concrete stake in the outcomeof this case because, to the extent Pap'shas an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court.Our interestinpreventing litigants from attempting to manipulate the Court's jurisdiction to insulate a favorable decision from reviewfurther counsels against a finding of mootness here.^[40](Emphasis supplied)

x x x x

The same interests areimpactedhere. The City of Manilacan enforce without challengeOrdinance No. 7780. Petitionerscan operateits publications businesswithout fear of prosecution and public relations backlash. This Court would have an interest inprecludinglitigants frominsulatingafavorable decision, as in the case of the Office of the City Prosecutor's Resolution dated June 25, 2013, from ourreview.

Hence, thecontroversyhere isnot moot.

Notably, inboth types of challenge,pre-enforcementandafter-the­ fact,theinjuryrequirement ismost loosely applied– particularly in terms of how directly the injury must result from the challenged governmental action – where theright to free expression is involved, because of thefear that free speech will be chilledevenbeforethe law, regulation, or policy isenforced^[41]or when theenforcementisvoluntarily stopped.

Here, petitioners'fear of prosecution wasandremains reasonablebecause of thecontinued assertionby the Office of the City Prosecutor of theconstitutionalityandenforceabilityof Ordinance No. 7780. Theharm they have sufferedandwill continue to suffer wasandremainto be anobjective chillof theirright to free expressionand the aforesaidnegative collateral consequencesof the filing of a criminal complaint and its prosecution. Thisharm substantiatesthe claim that acase or controversyexisted andcontinues to exist.^[42]

Thenatureof the petition as afacial challengeis alsosignificant. It is afactorin determiningwhether it is clearly likely that"the future threat of enforcement of the [challenged policy] is substantial."^[43]Thus:

At this point,"[t]he distinction between facial and as-applied challenges bears legal significance."See Schlissel, 939 F.3d at 766. Whereas "[t]here must be some evidencethat [a] rule would be applied to the plaintiff in order for that plaintiff to bring anas-applied challenge," that isnot the case for facial challenges. Instead, "when dealing with pre-enforcement challenges to recently enacted(or, at least, non-moribund)statutesthatfacially restrict expressive activityby the classto which the plaintiff belongs, courts will assume a credible threat of prosecution in the absence. of compelling contrary evidence."^[44](Emphasis supplied)

Thispresumption of a credible threat of prosecutionapplies to this case at bar. There isno evidenceto the contrary.

iii.	Causation and Redressability

Lastly,mootnessisdefeatedas well by theexistence of causationandredressability.^[45]Here, theenforcementthoughabortedand thecontinued threat of enforcementof the challenged Ordinance have caused petitioners'chillof their expression andnegative collateral consequencesfrom theiradverse involvementin thecriminaljustice system. Theseinjuriescould beredressedby acategorical and non-discretionaryrulingenjoiningtheenforcementof Ordinance No. 7780.^[46]

b. At any rate, the exceptions to the Doctrine of Mootness apply.

i.	Capable-of-repetition-yet-evading-review Exception

In any event, assumingwithout concedingthat the present case appearstechnically mooted, itstill hasin reality alive controversybecausethe legal questions it presents for decisionwill recur and again evade review.^[47]The petition falls within the category of cases that are "capable of repetition, yet evading review"exceptionto mootness.

As theponenciacorrectly said, thisexceptionapplies when "(1) thechallenged action was in its duration too short to be fully litigatedprior to its cessation or expiration, and (2) there [i]s areasonable expectationthatthe same complaining partywould besubjected to the same action again."^[48]As the party asserting the exception,petitioners bear the burdenof establishing that it applies.^[49]

Petitioners satisfied thefirst prongof thecapable-of-repetition-yet-evading-reviewexception.

Ordinarily, there isno preliminary investigationof criminal complaints forviolations of ordinancessince thepenaltiesfor these violationsdo not exceedimprisonment forfour (4)years.^[50]Under the Rules of Court, theprocessshould befinishedinno more than ten days from the date of filingof the criminal complaint.^[51]Thistiming discrepancyvirtuallyguaranteesthat thedirect filing will expire beforethe constitutional challenge reaches the courts, let alone, the Supreme Court.

Notably, too, the power ofjudicial review, or the power todeclare unconstitutionala statute, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation lies in the courtsandnotwith an administrative officer or agency such as the Office of the City Prosecutor in Manila City or its panels.^[52]Hence, it wouldnot be the proper officeto resolve; and therefore would beuseless to raise, the issue of constitutionality of Ordinance No. 7780 before the Office of the City Prosecutor.

Thesecond prongof the requisites – ''a reasonable expectation that the same complaining party would be subjected to the same action again" – presents amore difficult question. It has been affirmed that the "reasonable expectation"of repetitionmust bemore than"amere physical or theoretical possibility."

Butwhat exactlymust becapable of repetition?Nathan M. v. Harrison Sch. Dist. No. 2,^[53]illustrated thedifferent waysthis question has been answered:

x x x This difficulty stems, in part,from a lack of precision in our cases describing exactly what must be likely to recur. In Fischbach, vve asked whether the complaining party would be "subjected to the action again." Fischbach, 38 F.3d at 1161 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979)). Then in Wyoming v. U.S. Dep't of Agric. 414 F.3d 1207, 1212 (10th Cir. 2005), we asked the same question, but about potentiallyrecurrent"conduct." We reframed the question again in McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1255-56 (10th Cir. 2010), which spoke in terms of an "issue" or an "alleged injury" that could be repeated, and in Parker v. Winter, 645 F. App'x 632, 635 (10th Cir. 2016) (unpublished) (quoting Honig, 484 U.S. at 319 n.6), asking whether a claimant had demonstrated that a recurrence of the "dispute" was more [*1042] probable than not and whether the "controversy" was capable of repetition. (Emphases supplied)

AssummarizedinNathan M. v. Harrison Sch. Dist. No. 2,^[54]"the'wrong' that is, or is not, 'capable of repetition' must bedefined in terms of the precise controversy it spawns." The alleged 'wrong' must be put in terms ofthe legal questions it presents for decision."

Pulling these various threads together,to satisfy the second prong of the capable-of-repetition exception to mootness, petitionersbear the burdenof establishing that it isreasonably likely^[55]that the Office of the City Prosecutor,to repeat, willagain violateandchilltheirright to free speechbyaccepting a criminal complaintfor violation of Ordinance No. 7780 against petitioners or those similarly situated,entertainingthecriminal complaintbyforming a panel of prosecutorstointerrogatethem andresolvethe criminal complaint, andfilingandprosecutingthe Information against them for violating the Ordinance, with the trial courtissuing warrants for their arrest, requiring bailfor their continuous appearance,limitingtheirright to travel or movement, andentering criminal recordsunder their respective names.

Petitioners have clearlydischargedtheir burden of proving thewrongsthat willlikely happenif the present case wouldcontinueto be declaredmoot, as was done by this Court in its present ruling. Thesecond prongof thecapable-of-repetition-yet-evading-reviewexception has also beensatisfied.

But to justify its ruling that the present case has been renderedmoot, theponenciaheld that thedismissal with prejudiceof the criminal caseagainst petitioners before the trial court would ensure thatthey would not be prosecuted againfor violation of Ordinance No. 7780.

With utmost respect, this ruling is based on anerroneous appreciation of the facts, and as result,inaccurate conclusion of law.

Thedismissal with prejudiceby the trial court referredsolelyto the charge forviolation of Article 201 (3)of the RPC, andnotto the charge forviolation of Ordinance No. 7780. Thedismissal with prejudiceprecludesonlythe re-filing ofthe same actscomplained of as constituting the offenseunder Article 201 (3)of the RPC. Thedismissal with prejudicehasnothingto do with theviolation of the City Ordinanceor with theother issuesof thecondemned publicationswhether prior or subsequent to the latter.

To recall, thecomplaint for violation of Ordinance No. 7780was processed at thelevel of the Office of the City Prosecutorin the City of Manila. It wasdismissedby said office in itsResolutiondated June 25, 2013not becausethe complaint wasunmeritorious; rather, thedismissalwas based on its theory that the elements of this offense wereabsorbedby thecomplainants' other claimsfor violations of the RPC. There is alsono res judicataordouble jeopardyin proceedings before the Office of the City Prosecutor.^[56]

Hence,both requisitesfor the application of thecapable-of­ repetition-yet-evading-review exceptiontomootnessare present. There is no way the present petition has been mooted.

ii.	Negative collateral consequences

Anotherexception to mootnessjustifies the foregoing conclusion –negative collateral consequences.^[57]To recall, thedoctrine of mootnessisjustifiedby therequirementof an "actual controversyarising betweenadverselitigants who have alegally cognizable interest in the outcomeof the case."^[58]Thisrequirementis in turnwarrantedby thelack of constitutional authorityto render mereadvisory opinions.^[59]

A casebecomes mootwhen a court "can no longer grant effective relief."^[60]And even if a casewas not moot when it was first filed' intervening eventssince its filingcan render it moot.^[61]

As explained, the present petitionwas not mootwhen it wasfiled. Ithas not been rendered mootby changes in circumstances. Assumingwithout concedingthat it has become moot, thenegative collateral consequencesapply to support this Court's actionon the merits.

Theexceptionfornegative collateral consequencesmeans what it says: negative collateral consequences are likely to result from the action being reviewed. This exception is based on the premise that –

x x x the Court should still consider a case – even if it no longer involves a live controversy –if the action challenged by the appellant will continue to pose negative consequences for the appellant if it is not addressed. It is anatural extension of the conceptthat "[t]he central question of all mootness problems is 'whether decisionof a once living disputecontinues to be justified by a sufficient prospectthat thedecision will have an impact on the parties."' For example, we have held that the exception applied in a mental health case in which an involuntary hospitalization order – which had expired – nevertheless could have resulted in "legal disabilities" and "social stigmatization" for the patient past its effective date. "[D]espite [the] appellant's continued hospitalization under an order for continued treatment, thenegative collateral consequencesof beinginitially adjudicated mentally illand theninvoluntarily hospitalizedmaycontinue to plague[the] appellantwith both legal disabilitiesandsocial stigmatization."^[62]x x x (Emphasis supplied)

For thenegative collateral consequences exceptionto apply, "the contemplatedprospective 'impact on the parties'that justifies the exception must bespecific to the claimant.^[63]It maynotbe ageneralized grievance shared widely among the public.

Petitioners' casemeetsthenegative collateral consequences exceptionbecause of thesenegative collateral consequences: (i) theirright to free speechcontinues to bechilledby thereal and reasonable fearof complaint and prosecution, which arises from respondents'continuous assertionof theconstitutionalityandenforceabilityof Ordinance No. 7780; (ii) thelegal disabilitiesandother collateral consequencesresulting from the filing of the criminal complaint, its prosecution and the actions of the trial court; and (iii) thesocial stigmatizationof being referred to aspurveyors of smutandkindred terms.

Thesenegative collateral consequencesarespecific to petitioners. They have actuallysuffered these consequences. They may be shared with otherssimilarly situated, butthese othersare certainlynotthe shared­ widely-among- the-public-as-a-wholedisqualifiedby the exception. Thesimilarly situatedis avery smallandcompact communityof publishers engaged in the same erotic and benign expressions as petitioners.

In sum, the present petition isnot moot. But even assuming it has become moot, two (2)exceptionsto mootness apply, as heretofore discussed.

I also respectfully submit that theponenciawasmistakenwhen it disallowed petitioners,facial challengeof Ordinance No. 7780 to insist only on anas-applied challenge.

It haslongbeensettledthat a lawimpactingon speech or expression isreviewablenot only on the basis of aplaintiff's own injuriesbut also upon itsoverbreadth.^[64]Willson v. City of Bel-Nor^[65]explained:

"[A] law may be invalidated as overbroadif 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."' United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) (quoting Wash. State Orange v. Wash. State Repub. Party, 522 U.S. 442, 449 n.6 (2008)); Langford v. City of St. Louis, 2020 WL 1227347. at *6 (E.D. Mo. Mar. 5, 2020). "The First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges." Virginia v. Hicks, 539 U.S. 113; 118, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003). "[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rightsif the impermissible applications of the law are substantial when 'judged in relation to the statute's plainly legitimate sweep.'" City of Chicago v. Morales, 527 U.S. 41, 52, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)). "The aim of facial overbreadth analysis is to eliminate the deterrent or 'chilling' effect an overbroad law may have on those contemplating conduct protected by the First Amendment." Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977).

To stress, theoverbreadthdoctrine exists "toprevent the chilling of futureprotected expression."^[66]Therefore, any law imposingrestrictions so broad that it chills speech outside the purview of its legitimateregulatory purpose will bestruck down.^[67]For the same reason, petitioners would "have standing to challenge the Ordinance's overbreadtheven though they do not dispute that the Ordinance applies to each of them." Theoverbreadthdoctrineconstitutes an exception to traditional rules of standingandallows claimants to assert the rights of parties not before the court."^[68]

To conclude, the assailed Ordinance, as it criminalizes certain forms of speech, may bechallenged on its faceon the ground ofoverbreadthas afree speech or expression issue. More, since the Ordinance is acontent-based criminalization, it ispresumptively unconstitutionalandmay only be validatedif it passes thestrict scrutiny test.

a. Overbreadth

First, I discuss the objection on theoverbreadthof Ordinance No. 7780.

A three-part test is used to determine whether a statute is unconstitutionally overbroad.^[69]Thus:

"Thefirst stepinoverbreadth analysisis toconstrue the challenged statute; it is impossible to determine whether a statute reaches too far without firstknowing what the statute covers." Snider v. City of Cape Girardeau, 752 F.3d 1149, 1158 (8th Cir. 2014) (quoting United States v. Williams, 553 U.S. 285. 293, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)). "After construingthe statute, thesecond stepis toexamine whether the statute criminalizes a 'substantial amount' of expressive conduct." Id., citing Williams, 553 U.S. at 292).Third, courts must "ask whether[*20]the statute is readily susceptible to a limiting construction which would render it constitutional." (Id., citing Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988)). (Emphasis supplied)

The Ordinance'sexpansivedefinition of what isobscene– theparticularized messagestargeted by the Ordinance areindecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, orviolation of the proprieties of language or behavior– and itscriminalizationof theprinting, publishing, distributing, circulatingand/orsellingof these materials or actson account ofthesecontentsormessages, applies to asubstantial amount of expressive conduct. The Ordinance isnot vague. It isclear as to its meanings and implications. But it isoverbroad.

I canillustratenumerous examples of expressive conduct that the Ordinance prohibitsbeyond what it should only be criminalizing:

• Rigoberto Tiglao’s op-ed entitled "Did Jesus Exist?"^[70]This appears to beoffensive to religious beliefs. Mr. Tiglao in fact prefaces his op-ed with this opening paragraph: "AT this time, when our culture, dominated for nearly four centuries by the Hispanic model of late-medieval Catholicism, imposes on us several days of contemplating the Christian Messiah, I dare post again a piece I wrote two years ago, discussing whether Christ did exist in the first place. Someday, sometime in your lives, you will have to choose: the Red or the Blue pill."
• Mr. Tiglao's op-ed "The Real Origins of Christmas."^[71]This appears to beoffensivenot just to religious beliefs but alsoto good customs, principles or doctrines, one having atendency to corrupt or depr[a]ve the human mind, characterized byunfitness to be seen or heard, orviolation of the proprieties of language or behavior.
• Nadine Lustre's sexy photos published in ABS-CBN'sLifestylewebpage.^[72]The photos appear to beerotic.
• Same-sex stories as narrated and depicted in the internet.^[73]They appear to be asmorgasbordof everything the Ordinancecriminalizes–indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, orviolation of the proprieties of language or behavior.
• As illustrated inSurvivors Network of Those Abused by Priests, Inc. v. Joyce:^[74]

  As amici point out,critical portrayals of Muhammad outside a mosqueorof the Pope outside a Catholic Churchmight well be consideredprofane or indecent by their audiences. Others may findlanguage using the name of holy figures as swear words not only disrespectful, but profaneas well. Similar expressions in the near vicinity of a house of worship have the potential to disturb or disquiet those present for worship. The meaning of "profane," or irreverence to the sacred, isnot a well defined legislative term familiar to people of different faiths. Any silent demonstration outside a house of worship would likely be able to create a disturbanceonly by the content of its message.Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment.

  Some of the messages which appellants seek to communicate may well be considered rude and offensive by their target audience.The very topics which the record indicates appellants wish to address, includingsexual abuse and the concealment of such crimes, can elicit strong emotional responses whether from clergy accused of wrongdoing, victims of abuse and their supporters, or church members. Others may take exception to the demonstrations by Call to Action advocating for theordination of women and church acceptance of gay, lesbian, and transgender people. (Emphasis supplied)

• Any movie or video featuring a single shot of a person's nude or partially-covered buttocks or a woman's partially covered breast is anobscene material or actunder the Ordinance, irrespective of whether the content constitutes "adult entertainment" or causes the type of secondary effects, such as crime (sexual and nonsexual) and public health risks, that any government may seek to regulate.^[75]
• A painting of a nude person or several nude persons.
• Compelling narration in a court decision of sexual acts.

Anyenlightenedcourt would find these examples to illustrate that Ordinance No. 7780 creates a "prohibition of alarming breadth."^[76]Making things even more problematical is the fact the theponenciadid not identifythecompelling state intereststhat the Ordinance would want to pursue and accomplish. Thus, the Ordinance isoverbroadandfacially invalidbecause theimpermissible applicationsof the law aresubstantialwhen judgedin relation to its plainly legitimate sweepif at all.

Further, the Ordinance isnot readily susceptible to a limiting constructionbecause it would have to be rewritten in order to conform to constitutional requirements.^[77]Indeed:

The courts do not rewrite laws in these circumstances, as this would invade the "legislative domain." (citing Stevens, 559 U.S. at 481); Snider, 752 F.3d at 1158 ("No limiting construction would be consistent with any plausible understanding of the legislature's intent"). "Limiting constructions of state and local legislation are more appropriately done by a state court or an enforcement agency." Willson, 924 F.3d at 1004 (quoting Ways v. City of Lincoln, 274 F.3d 514, 519 (8th Cir. 2001)).^[78]

Thefree expression rights of adultsarenot the same asoridentical tothefree speech rightsvis-à-visminors. "In evaluating the free speech rights of adults," the United States Supreme Court has "made it perfectly clear that 'sexual expression which is indecent but not obscene is protectedby the First Amendment."^[79]Also, "[s]peechwithin the rights of adults to hearmaynot be silenced completelyin an attemptto shield children from it."^[80]

Here, there isnothingin Ordinance No. 7780 which limits its scope to anyestablished criminal practice, much less to, for example, the transmission of harmful material to a minor with the intent of facilitating the sexual exploitation of the minor. The Ordinance isactually very broadin scope when it comes toonline speech, notably, the assailed FHM magazines that have been transformed intodigitaleditions. The Ordinance isespecially offensivetofree expressionin thedigital platformbecause itforces every speaker on the internetin every state or community anywhere in the Philippines or even the worldto abide by the alleged prevailing community standards of the City of Manila, even if theonline speechwouldnot be found harmful in any otherlocation. Truly:

To paraphrase the Supreme Court, it isneither realistic nor constitutionally soundto read the First Amendment asforcing the peopleof New York City or San Franciscoto restrict their speech to abide by what is deemed acceptable speechin Vermont. See Miller v. California, 413 U.S. 15, 32, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). "People in different States vary in their tastes and attitudes and this diversityis not to be strangled by the absolutism of imposed uniformity. x x x"^[81](Emphases supplied)

Ordinance No. 7780also lacks "practicalsafe harbors or exceptions"^[82]for most publishers. With the exception of "materials printed, distributed, exhibited, sold, filmed, rented, viewed, or produced by reason of or in connection with or in furtherance of science and scientific research and medical or medically related art, profession, and for educational purposes," the Ordinanceapplies to an entities and individualsthat communicate theprohibited messagesonwhatever platform. Thus, the Ordinance "effectively drives protected and valuable speech for adults out of the 'marketplace of ideas."'^[83]

b. Content-Based and Strict scrutiny

The constitutionality of a restriction on speech depends in large part on whether it iscontent-basedand thus subject to themost exactingorstrict scrutiny, or acontent-neutral time, place, mannerorsecondary effectsregulation subject to intermediate scrutiny.^[84]

To recall,content-basedlaws are those that target speech based on its communicative content. As already explained above,Ordinance No. 7780is acontent-based criminalizationofoverly broadforms of speech. It definesobscenitybased on the message the subject material or act conveys and then subjects each category to varying criminal penalties. It is alsocontent-basedbecauseenforcement authorities must determine^[85]whether a material or act evokesindecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior.

Because the Ordinance is acontent-basedprohibition, itmust satisfy strict scrutinyregardless of the City of Manila's "benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the [prohibited] speech."^[86]They arepresumptively unconstitutional. They may bejustified only ifthegovernment provesthat they arenarrowly tailoredto servecompelling state interests. If the restriction isnot narrowly tailoredto achieve acompelling interest, it is anunconstitutional restrainton free speech.^[87]

There isnothing on recordabout the government interests sought to be advanced by Ordinance No. 7780. If it was meant tocurb prurient interestsorpatently offensive sexual conduct, thebroad sweepofthemessages it criminalizes –indecency, eroticism, lewdness, offensiveness to morals, good customs, religious beliefs, principles or doctrines, tendency to corrupt or depr[a]ve the human mind, calculation to excite impure imagination or stimulate sexual drive or impure imagination or arouse prurient interest, unfitness to be seen or heard, or violation of the proprieties of language or behavior– arenot narrowly tailoredto meet its objectives.

Thesemessagesmay capture evencontrarian ideassimply because they offend others and may be interpreted by them asindecent, erotic, lewd, offensive to morals, good customs, religious beliefs, principles or doctrines, etc. The Ordinance therefore runs asubstantial riskofsuppressing ideasin the process, as itimpermissiblyrequires enforcement authorities tolook into the content of the speaker's messagein order to enforce it. This isnot permissible. The right to free expressionguaranteesthat the governmentought not to prohibitandinhibitthe expression of an idea merely becausesociety finds the idea itself offensiveordisagreeable.^[88]

It must also be stressed that:

Thetailoring requirementdoes not simplyguard againstan impermissibledesire to censor. The government mayattempt to suppress speechnot only becauseit disagreeswiththe message being expressed, but also formere convenience. [B]y demanding a close fir between ends and means, the tailoring requirementprevents the government from too readily sacrificing speech for efficiency.^[89]

Here, the approach of Ordinance No. 7780to lump together everything contrarianunder the criminal termobscenemanifests itsoverwhelmingintentionnot onlytocensor ideas disagreedwith,but alsoto use themost convenient modeof doing so, that is, bybanningandcriminalizing everythingnot to a complainant's or the Ordinance enforcer's liking.

The Ordinance alsofails strict scrutiny analysisbecause respondents have failed to demonstratewhy a less restrictive provision would not be as effectivein addressing the goal of curbing prurient interest and patently offensive sexual conduct.^[90]There areseveral other criminal statutesthat arepotentially less restrictive alternativesto Ordinance No. 7780. Althoughvery insistenton thecontinuing validityandenforceabilityof this Ordinance, the Office of the City Prosecutor was in fact able to identify provisions in the RPC that appear to benarrowly tailoredto suppressing prurient and patently offensive sexual conduct.

"When First Amendment compliance is the point to be proved, the risk of non-persuasion – operative in all trials – must rest with the Government, not with the citizen."^[91]The Ordinance remainspresumptively invalid, and this presumptionhas not been rebuttedhere because the Ordinance has drawn content-based distinctions that are not necessary to achieve the asserted interest against prurient and patently offensive sexual conduct.

Anas-applied challengeconsists of a challenge to the law's applicationonly as-appliedto the party before the court.^[92]To prevail, a plaintiff must show that the law is unconstitutionalbecause of the way it was applied to the particular facts of his or her case.^[93]

For the same reasons discussed with respect tofacial overbreadthandfailed strict scrutiny, Ordinance No. 7780 has theeffect of unconstitutionally circumscribingpetitioners' free speechas-appliedto the assailed FHM magazines. For sure, not all of their expressive content would beunprotected speech. But unfortunately, thestandardsset forth in the Ordinance areso broadthat they prohibit and criminalize even those portions in petitioners' magazines that areprotected speech. The Ordinance isincapableofdistinguishingbetweenprotectedandunprotectedspeech. As a result of this sweeping coverage, theentiretyof thecontentof petitioners' magazines isdeemed criminalby the Ordinancesimply becausethey areoffensive to the religious beliefsof the pastors and preachers who filed the criminal complaint and what they deem to be theappropriate language and behavior.

In any event, Ido not findthe assailed issues or editions of FHM Magazine to beobsceneor in any other mannerunprotectedby the right to free expression.As-appliedto these magazines, Ordinance No. 7780unconstitutionallycurtails petitioners' free speech.

The prevailing test of obscenity in our jurisdiction^[94]is founded uponMiller v. California.^[95]UnderMiller, the basic guidelines to determine whether a work is obscene and, therefore, subject to state regulation, are as follows:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

All three prongs of theMillertest must be satisfied for a work to be found obscene.^[96]

The key terms in theMillertest have been explained in this manner:

1. Community Standards

Analysis of obscenity under the Miller test looks tolocal, as opposed to national, community standards. The"community standards" testseeks to ensure that jurors assess the potentially obscene materialfrom the point of view of an average person, not the most sensitive memberof the community. The court or the jury can define the relevant community. The community can include a state as large as California or a small, rural community in Georgia. Thus, First Amendment protection might be afforded in New York to materials deemed obscene, and therefore prohibited, in Maine.

Despite the apparent repudiation of a national standards test in Miller, the Supreme Court hasallowed courts to apply both national and local standards of decency. In Hamling v. United States, the Court stated that the purpose of the community standards test was "to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." Referencing national standards as well as community standards fulfilled this goal. Further, when instructing jurors on the community standards test, courts are not required to define which community jurors should consider. Both partiesmay choose to use expert witnesses to help explain what the community standard should be; however, that determination is ultimately left up to the juror.

The interaction between obscene speech and the Internet also creates interesting problems in determining community standards. For example,when obscenity is posted to the internet it cannot be prevented from entering any community. Accordingly, the Sixth Circuithas applied the standard of the local community in which the materials are receivedrather than a national community standard. In effect, this means if distributors of sexual material wish to receive First Amendment protection,they must comply with the community standards where the materials are disseminated. However, more recently, the Ninth Circuit has interpreted the plurality in Ashcroft v. American Civil Liberties Union to give us a clearer way in how to define community standards. In United States v. Kilbride, the court followed the position of the Justices who concurred in the judgment on the narrowest grounds. The court concluded that Justice O'Connor's and Justice Breyer's concurrences in the judgment were the correct standards to follow, and that a national community standard must be used to determine obscene material on the Internet. Justice O'Connor reasoned that "given internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable,may be entirely too much to ask, andwould potentially suppress an inordinate amount of expression" and that a national community standard would avoid this First Amendment problem. Justice Breyer reasoned thata local community standardwould "provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation."

2. Prurient Interest

Before Miller, the Supreme Court defined "prurient"as "material having a tendency to excite lustful thoughts" including "itching; longing; uneasy with desire or longing . . . lascivious desire or thought."Prurient interest, as used in the Miller test, is understood as "that which appeals to shameful or morbid interest in sex." Triers of factneed not be arousedby material to judge it prurient. Instead, theymerely need to determine whether the material in question would appeal to a member of the target group in a prurient mannerandis intended to arouse members of the target group. Triers of fact have recognized thatnot all nudity appeals to a prurient interest;alternative lifestyles, such as that of a nudist, sometimes encompass materials thatdo not necessarily appeal to a prurient interest.

3. Patently Offensive

Miller did not require states to define "patently offensive" in a uniform way. In fact, many obscenity statutes "[go] substantially beyond customary limits of candor in description or representation." The Miller Court explained that "patently offensive," for example, couldinclude "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated x x x [or] masturbation, excretory functions, [and] a lewd exhibition of the genitals." Some states have included sexual acts not mentioned in Miller, such asbestiality, sadomasochism, andsexual bondage. These additions have been found to be permissible examples of "patently offensive" behavior that states may restrict or ban as obscene.

4. Societal Value

Sexually explicit materialsthathave"serious literary, artistic, political, orscientific value" whenviewed as a wholereceive full First Amendment protection under Miller, according some protection for sexual materials with societal value.Context is importantin this determination. For example, "medical booksfor the education of physicians and related personnel" with explicit illustrations and descriptions are protected. Also,videogames with fleeting nuditycan be protected. In Entertainment Software Ass'n v. Blagojevich, the court held that the video game God of War was essentially an interactive version of Homer's Odyssey, and its fleeting nudity in one scene should be protected becausethe game as a whole has literary value for the youths who playit. In contrast, merely putting a quotation from a famous author in the flyleaf of a book does not render it a work of serious literature such that it will merit full First Amendment protection.^[97]

The assailed FHM magazines donotexhibitanyof these three prongs.

For one, the assailed FHM magazinecontains both texts and picturesthatcover a variety of general interest topics– women, pop culture, fashion and grooming, sports, music, movies, gadgets, sex and relationship, and humor. Themagazines have edgy photosof women in various stages of undress but not totally nude, but nudity per se, much less sexy pictorials, isnot obscenity. To the average person using contemporary community standards, especially when each page of an issue of the magazine is read with its other pages and the other issues or editions of the magazines in toto, the magazinescannot be adjudgedas pandering solely toprurientinterests.

Neither do the magazines depictsexual conduct in a patently offensivemanner.United States v. Various Articles of Merch.^[98]has explained thissecond prongas follows:

The Supreme Court emphasized in Miller that "no one will be subject to prosecution for the sale or exposure of obscene materialsunless these materials depict or describe patently offensive 'hard core' sexual conduct." The Court, recognizing the difficulty and the dangers of attempting to regulate any form of expression,gave a few examples of what a state statute could define for regulationunder part (b) of the Miller standard:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

x x x x

InFernando v. Court of Appeals,^[99]this Court adopted the foregoing formulation of patently offensive to define this phrase and prevent unbridled discretion in its invocation.

Thephotographsin the assailed magazinesdo not depict private parts at all. Though there are photographs of women and at times menin various stages of undress, theirprivate parts, however, arenot exposed. Neither of these private parts is being exhibited nor being shown off. While their bodies,including provocative imaginingsorinciting to sensual imaginationof their private parts, are thefocal pointof the photos, the fact remains thatnoneof these photosactually shows offthe model's private parts.At a minimum, theexposureof one's private parts would benecessaryto aggravate the images as beingpatently offensive sexual conduct.

Norcan I conclude that the magazines depict or describe patently offensivehard coresexual conduct. Nudity, much less near nudity isnotenoughto make the magazines legally obscene under theMillerstandards. Weneed more than nudityto up the ante. Unfortunately, there are noexplicit sexual positionson display. Only thetitillating pictures and posturesandsultry looksare all there is to even suggest that the materials are obscene. The magazines thusfall far outsidethe zone ofhardcore sexual conductthat may constitutionally be found to bepatently offensive.

Thefinal prongof theMillertest, as stated, iswhether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The assailed FHM magazines possesspolitical value. "The term 'political' which we employ here isbroad enough to encompassthat whichmight tend to bring about 'political and social changes."'^[100]The magazines espousealternative lifestylesandalternative communities, which celebratesexualityandsensualityas acceptable behavior, values and mindset. It is true that the political value of these magazines is not as immediately evident as the political value of, say, theEconomistor thePolitical Science Review. "However, publications dedicated to presenting a visual depiction of an alternative lifestyle, a depiction with a decidedly Utopian flavor, have political value similar to the political value of articles criticizing government regulation of that and other lifestyles."^[101]

I would suggest that the subject FHM magazines do not even reach the status of anindecent speech, which at any rate is a category ofprotected speech:

Indecent speech is protectedby the First Amendmentbut is disfavored and may be regulated. Indecent speech, while not defined by the Supreme Court, has been explained by the Federal Communications Commission (FCC)as that which "in context, depicts or describes, in terms patently offensive as measured by contemporary community standardsx x xsexual or excretory activities or organs." The FCC uses acontextual balancing test of three factorswhen looking at broadcast material to determinewhether or not it is indecent: "(1) whether the description or depiction is explicit or graphic, (2) whether that material dwells on or repeats at length descriptions or depictions of sexual or excretory organs,and(3) whether the material appears to pander or is used to titillate or shock." Thus, unlike obscene speech,indecent speech need not appeal to the prurient interestorlack serious literary, artistic, political, or scientific value in order to be regulated.

The First Amendmentprotects sexual speech not rising to the level of obscenity, but provides less protection than it does for more valuable forms of speech. The Supreme Court has explained that:

[E]ven though we recognized that the First Amendment willnot tolerate the total suppression of erotic materialsx x xsociety's interest in protecting this type of expression is of a wholly different, andlesser, magnitudethan the interest in untrammeled political debate x x x Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every school child can understand why our duty to defend the right to speak remains the same. Butfew of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities"exhibited in the theaters of our choice.

Generally, when the government regulates speech on the basis of its indecent content, courts must apply strict scrutiny.^[102](Emphasis supplied)

Sexual speechis a specie of indecent speech.^[103]It is disfavored but stillprotected. On the other hand, free speech doesnot protect obscenity. The government may ban or regulate it. But it must do so narrowly. Laws that prohibitobscenitymay be found unconstitutional if theypotentially prohibit an excessive amount of non-obscene speech.^[104]Private possessionof obscene materials isgenerally protected, while distribution and transmission of such materials is not.^[105]

The subject FHM magazines arebenignexpressions of sexuality and sensuality. They areplayful flirtationswithbeautyandsexiness. But they arenot obscenebyMiller's standards.Neitherare they evenindecent expressionas defined by the United States' Federal Communications Commission. Thus,as appliedto these magazines, the Ordinance hasviolated petitioners' free speechwhen it was used to prohibit and penalize, as well as shame and bring opprobrium to, their acts of printing, publishing, distributing, circulating and/or selling these protected magazines.

TOWARDS A MORE INCLUSIVE OBSCENITY AND OTHER SEXUAL
SPEECH TEST

A final point. I agree with the learned Associate Justice Marvic F. Leonen that theconstitutional protectiongiven tosexual speechhas ridden the crest of thecommodification of women, thesexual gratification of the heterosexual male specie, and thedehumanization and demonization of theother(female, lesbian, gay, bisexual and queer)bodies. I find it bothfunnyanddisconcertingthat in defining theobsceneandindecent, thepuerilenessof the expression to the male penis or its exposure of thefemalenipple has been the standard of constitutional protection. Justice Leonen could be correct that this jurisprudential development islargely a reflectionof the communities we live in – the rise and power of themachosociety within and outside of the family and into institutions of power and authority, the courts included.

Helen Longino^[106]describes the sexual speech that hasalsogreatly benefitted from the constitutional protection to free speech:

Pornographylies when it says thatour sexual life is or ought to be subordinate to the service of men, that our pleasure consistsin pleasing men and not ourselves, that we are depraved, that we are fit subjects for rape, bondage, torture, and murder ... [this] fosters more lies about our humanity, our dignity, and our personhood. (Emphases supplied)

Catherine MacKinnon explains,sexual expression causes harmnot because it leads to a particular violent act against women; rather, theharm of sexual expressionlies in itsnegative impact on a consumer's understanding of gender and sexuality– it generatesa social environment in which women are devaluedand in whichsex is eroticized violenceby whichmen seek gratification.^[107]

Andrea Dworkin^[108]would thus advocate:

Theoppression of womenoccurs throughsexual subordination. It is theuse of sex as the medium of oppressionthatmakes the subordination of womenso distinct from racism or prejudice against a group based on religion or national origin. Social inequality is created in many different ways x x x theradical responsibilityis toisolate the material means of creating the inequalityso that material remedies can be found for it. (Emphases supplied)

TheMillertest referencescommunity standardsandsocietal values. The question is thelocusof these standards and values. Upon whose standards and values do we anchor what is obscene and what is not obscene, what is protected and what is unprotected? It is said that the standards and values should be that of theaverage person– what wasintolerable to the average memberof the national community would determineobscenity.

But theaverage personis alsosituatedsomewhere, sometime, and somehow. Wedo not livein homogenous communities. There will always be those who would be themajority, theminority, themarginalized, and theunderrepresentedandunrepresented. Substantive equality will have to account as well for their standards and values.

I believe thatmajoritarian community standardstolerate if not accept the materials and acts published in the challenged FHM magazines. Thepopularityandacceptabilityof this magazine as a whole areoff-the-roof. They are consideredfashionableandrarelyreferred to assmut. The magazines provide political, entertainment, and aesthetic values to the communities in which they are read. Therefore, the magazinesshould easily passtheMillertest.

But, Ido not acceptthatwhat istoleratedandacceptedby the majority is necessarilyliberatingandprogressive. Werecognizeas arule of lawtheequality of the dignities and personhoodof all peoplesregardlessof race, age, sexual orientation, ethnicity and other indicators of one's autonomy and actualization in society. The community standards testmust accountfor these differences andallow forthe distinctiveness of individuals and communities in our midst.

In place of thestandards-of-the-community-of-the-average-person test, I respectfully endorse theharm-based approachin assessing the community standards of tolerance.^[109]The approach requires the courts to determine usingevidenceabout theharmful effectsof the expression andinferencefrom the expression itself "what thecommunitywould tolerateothersbeing exposed to on the basis of thedegree of harm[to the others] that may flow from such exposure."^[110]

Harmin this context hasthree types: "(1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti­ social conduct; and (3) harm to individuals participating in the conduct."^[111]

Harm may either be in theformofanti-social conductoranti-social attitudes.^[112]In terms ofconduct, "criminal law maylimit conduct and expressionin orderto prevent peoplewho may see it from becomingpredisposed to acting in an anti-social manner."^[113]As regardsattitudinal harm, theexpressionmust be one (i) to which thepublichas been exposed and (ii) which "perpetuates negative and demeaning imagesof humanity and islikely to undermine respectfor members of the targeted groups and henceto predispose others to actin an anti-social manner towards them."^[114]

Thedegree of harmthat would necessitate regulation, prohibition or even criminalization, wasassessedby ascertainingwhether the material or conduct was"incompatible with the proper functioning of society."^[115]Thethresholdfor establishing such a standard must behigh, since membership in a diverse societymandates toleranceof conduct or material of which one disapproves.^[116]Highmeans it must be "objectively shown beyond a reasonable doubtto interfere with the proper functioning of society."

Theproof of harmdemands more than speculation and vague generalizations.^[117]There must be areal riskthat the expression will cause any one of the types of harm – the sexual act or speech at issue willlead to attitudinal changesand henceto anti-social behaviour.^[118]Thecausal linkbetween images of sexualityandanti-social behaviour cannot be assumed; rather, alinkmust be establishedfirst betweenthe sexual act or speechandthe formation of negative attitudes,and secondbetween those attitudesandreal risk of antisocial behaviour.^[119]Expert evidencemay help to establishactual harm, while theprobability(and not merely the possibility) of therisk of harmmay be shown from the act or expression itself.

InRegina v. Labaye,^[120]the accused was charged with operating a "common bawdy-house," a violation under Section 210(1) of theCriminal Codeof Canada, for owning the club, in which persons who paid membership fees and their guests could assemble and engage in group and oral sex and masturbate. These activities were consensual and, while members paid the club membership fees, the members did not pay each other in exchange for sex. In determining whether the accused was guilty of owning a bawdy-house, the Canadian Supreme Court had to decidewhether the activitiestaking place within should be classified asindecent, sincebawdy-housesare, by definition,houses in whichprostitution orindecencyoccurs or is planned to occur. The accused was found guilty.

The Canadian Supreme Court acquitted the accused. Using the harm-based approach in arriving at the community standards of tolerance, the Court foundno evidencethat the degree of alleged harm rose to thelevel of incompatibility with the proper functioningof society. It held that consensualconduct behind code-locked doorscanhardlybe supposed tojeopardizesociety.Nothingwas involved that encouragedsexistandmisogynistattitudes. The sex was consensual andnot prostitution. The threat of sexually transmitted diseases are more of a health issue than a harm that comes exclusively from deviant sex.

Theharm-based approachcould help in pursuinginclusivecommunity standards. It allows courts to considerall of the stakeholders, not only the community of the average person, in a meaningful manner.

Admittedly, though,Labayewas decided the way it did on the ground thatno harm to othersthat the community would have beenunwillingto tolerate and accept happened. Thecognitive lenswas still the perspective of theothers, and not theautonomyof the participants in the bawdy-house. Indeed, the "swingers might have been more concerned that the practice at issue was central to the way in which they lived their lives – to their actualization in society."^[121]

Further:

Rather than recognizing the integral nature of the practice to the aggrieved community and then utilizing that affirmative principle to buttress the right to practice the lifestyle, the Court instead arrives at its conclusion by considering the negative implications of swinging as a lifestyle. The underlying messages are that swinging appeals to base interests, that the average member of society is not likely to suffer, and that swingers are not harmed since they are already attitudinally changed; therefore the practice in the case at bar was permissible.

The focus does not consider all of the stakeholders in a meaningful manner, most notably the beliefs of the aggrieved swingers. The members outside of mainstream society were analyzed as "others" and were left to behave as they wished so long as "our" interests were not harmed.^[122]

Just the same, theharm-based approachcan be enriched "with amultitude of variablesthat would fully situate the harm analysis in a contextually sensitive manner."^[123]In determiningwhether the sexual actor speech is harmfulas itunduly exploits sexand would beacceptedortoleratedby society, theharms testmay take into account factors such as the sex, race, age, disability, and sexual orientation of the participants; the purposes of the materials; the intended audience, the existence of real or apparent violence; the existence of consent; the nature of the publication, including the relationship of the impugned materials to the entirety of the publication; the framework and manner of production, distribution and consumption; and the benefits to viewers and readers from the production and dissemination of the materials.^[124]

Arguably, anenriched harm-basedcontext would satisfy theconcerns for equalityandagainst stereotyping and discrimination. This would be the case in the context of sexually explicit materials that challenge the dominant heterosexual male perspective and are enriched by factors that are tailored to account for members of theothercommunities.

I am aware that developments in jurisprudence as remedies to societal inequitiestake timeto percolate, and the thoughts I have discussedwould likely remain justthat, idlethoughts. In any event, the law is only one among many forums for change. As Brenda Cossman cautions, "while the law is busy trying to discipline these unruly sexual subjects, these sexual subjects are actually being normalized through other competing discourses."^[125]

CONCLUSION

I conclude that petitioners have established that they are entitled to a declaration that Ordinance No. 7780 is unconstitutional on its face and as applied to them.

ACCORDINGLY, I vote toGRANTthe Petition. City of Manila Ordinance No. 7780 should be declaredUNCONSTITUTIONAL.

^[2]David v. Arroyo, 489 SCRA 160, 213-214 (2006).

^[3]219 U.S. 498 (1911).

^[4]410 U.S. 113 (1973).

^[5]Estrada v. Sandiganbayan, 369 SCRA 394.

^[6]315 U.S. 568 (1942).

^[7]354 U.S. 476 (1957).

^[8]137 SCRA 717 (1985).

^[9]Miller v. California, 413 U.S. 15 (1973).

^[10]End of an era: FHM PH reveals final print cover girl, athttps://news.abs-cbn.com/entertainment/05/02/18end-of-an-era-fhm-ph-reveals-final-print-cover-girl(last accessed December 24, 2020).

^[11]Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 350, 105 L. Ed. 2d 342, 350, 1989 U.S. LEXIS 3115, *1-4-, 57 U.S.L.W. 4770 (U.S. June 21, 1989).

^[12]Id.

^[13]Willson v. City of Bel-Nor, 2020 U.S. Dist. LEXIS 117818.

^[14]Id.

^[15]779 F.3d 785 (8th Cir. Mo. March 9, 2015).

^[16]Id.

^[17]Supra note 13.

^[18]American Booksellers Foundation for Free Expression v. Dean, 202 F. Supp. 2d 300 *, 2002 U.S. Dist. LEXIS 8901 **, 30 Media L. Rep. 2121.

^[19]SeeDeja Vu of Nashville, Inc. v. Metro Gov’t of Nashville & Davidson County, 274 F.3d 377 *, 2001 U.S. App. LEXIS 26007 **, 2001 FED App. 0415P (6th Cir.) ***,City of Erie v. Pup’s A.M., 529 U.S. 277 (U.S. March 29, 2000).

^[20]Id.

^[21]SeeSpeech First, Inc. v. Fenves, 2020 U.S. App. LEXIS 34087 *; 979 F.3d 319: "This court has repeatedly held, in the pre-enforcement context, that '[c]hilling a plaintiff's speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.' Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2010) (same) ("As the district court noted, '[t]he First Amendment challenge has unique standing issues because of the chilling effect, self-censorship, and in fact the very special nature of political speech itself."'). It is not hard to sustain standing for a pre-enforcement challenge in the highly sensitive area of public regulations governing bedrock political speech."

^[22]999 F.2d 1486, 1993 U.S. App. LEXIS 22340 **, 7 Fla. L. Weekly Fed. C 749.

^[23]Id.

^[24]Nathan M. v. Harrison Sch. Dist. No. 2, 9-12 F.3d 1034 *, 2019 U.S. App. LEXIS 34082 **, 2019 WL 5997387.

^[25]American Civil Liberties Union v. The Florida Bar, Supra note at 22.

^[26]Id.

^[27]Id.

^[28]Supra note at 21.

^[29]Supra note at 22.

^[30]Supra note at 22.

^[31]Id.

^[32]Id.

^[33]Playboy Enterprises, Inc. v. Public Service Com., 698 F. Supp. 401 *; 1988 U.S. Dist. LEXIS 12416 **

^[34]Supra note at 21.

^[35]Supra note 33.

^[36]Supra note 21.

^[37]Supra note 22.

^[38]Supra note at 13.

^[39]See 529 U.S. 277 (U.S. March 29, 2000).

^[40]Id.

^[41]Supra note at 22.

^[42]Id.

^[43]Supra note at 21.

^[44]Id.

^[45]Id.

^[46]Id.

^[47]Nathan M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034 *; 2019 U.S. App. LEXIS 34082 **; 2019 WL 5997387.

^[48]Id.

^[49]Id.

^[50]Rules of Criminal Procedure (2000), Rule 110, Section 1 and Rule 112, Section 8.

^[51]SECTION 8. Cases not requiring a preliminary investigation not covered by the Rule on Summary Procedure. — (a) If filed with the prosecutor. — If the complaint is filed directly with the prosecutor involving an offense punishable by an imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in Section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint within ten (10) days from its filing.

^[52]SeeSerrano v. Gallant Maritime Services, Inc., 601 Phil. 245 (2009). "Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial function — its function in the present case is limited to determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the law itself; thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions." Also,Parreño v. Commission on Audit, 551 Phil. 368 (2007);Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989.

^[53]Supra note at 47.

^[54]Id.

^[55]Id.

^[56]SeePavlow v. Mendenilla, 809 Phil. 24 (2017).

^[57]Paige v. State, 2017 VT 54 *; 205 Vt. 287 **, 171 A.3d 1011 ***, 2017 Vt. LEXIS 73 ****.

^[58]Id.

^[59]SeeDoria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318 (1991).

^[60]Supra note at 57

^[61]In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991).

^[62]Supra note at 57.

^[63]Id.

^[64]Supra note at 22.

^[65]Supra note at 13.

^[66]Staley v. Jones, 239 F.3d 769, 770 (6th Cir. 2001).

^[67]Supra note at 18.

^[68]Triplett Grille, Inc. v. City of Akron, 40 F3d 129 (6th Cir. 1994).

^[69]Supra note at 13.

^[70]https://www.manilatimes.net/2020/04/10/columnists/topanalysis/did-jesus-exist/711922/(last accessed December 30, 2020).

^[71]https://www.manilatimes.net/2020/12/25/opinion/columnists/topanalysis/the-real-origins-of-christmas/817156/(last accessed December 30, 2020).

^[72]Ang init! Nadine Lustre sizzles in these hot photos, athttps://lifestyle.abs-cbn.com/starstudio/stories/2020/02/read/and-init-nadine-lustre-sizzles-in-these-hotphotos(last accessed on December 30, 2020).

^[73]https://www.wattpad.com/stories/same-sex(last accessed on December 30, 2020).

^[74]779 F.3d 785 (8th Cir. Mo. March 9, 2015).

^[75]Supra note at 19.

^[76]Supra note at 13.

^[77]Id; Supra note at 18.

^[78]Id.

^[79]Id.

^[80]Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002).

^[81]Supra note at 22.

^[82]Id.

^[83]Id.

^[84]See supra note 13;Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012);Survivors Network of Those Abused by Priests, Inc. v. Joyce, supra note 74.

^[85]Supra note at 13

^[86]Id.

^[87]R.A.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992).

^[88]Supra note at 74.

^[89]McCullen v. Coakley, 573 U.S. 464, 486, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014).

^[90]Blitch v. City of Slidell, 260 F. Supp. 3d 656, 665-666, 2017 U.S. Dist. LEXIS 93751, *15-18, 2017 WL 2634342 (E.D. La. June 19, 2017).

^[91]Supra note at 33.

^[92]Republican Party of Minn., Third Cong. Dist. v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004).

^[93]Phelps-Roper v. Ricketts, 867 F.3d 883, 895 (8th Cir. 2017).

^[94]Soriano v. Laguardia, 605 Phil. 43, 148 (2009).

^[95]See 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973).

^[96]SeeUnited States v. Various Articles of Merch., 230 F.3d 649, 652, 2000 U.S. App. LEXIS 26627, *4-5 (3d Cir. N.J. October 23, 2000).

^[97]"Sixteenth Annual Gender and Sexuality Law; Annual Review Article: Constitutionality of Sexually Oriented Speech: Obscenity, Indecency and Child Pornography," 16 Geo. J. Gender & L. 81, 84-91.

^[98]Supra note at 96.

^[99]See 539 Phil. 407 (2006).

^[100]Supra note at 96.

^[101]Id.

^[102]Supra note at 97.

^[103]Id.

^[104]Id.

^[105]Id.

^[106]Richard Jochelson, After Labaye: The Harm Test of Obscenity, The New Judicial Vacuum and the Relevance of Familiar Voices, 46 Alberta Law Review 749 (2009), 2009 CanLIIDocs 233, quoting from "Pornography, Oppression, and Freedom: A Closer Look" in Laura Lederer, ed., Take Back the Night: Women on Pornography (New York: William Morrow, 1980).

^[107]Id.

^[108]Id.

^[109]Regina v. Lab Regina v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728 (Supreme Court of Canada).

^[110]Id.

^[111]Supra note at 106.

^[112]Supra note at 109.

^[113]Id.

^[114]Id.

^[115]Id.

^[116]Id.

^[117]Id.

^[118]Id.

^[119]Supra note at 106.

^[120]Supra note 109.

^[121]Supra note 106.

^[122]Id.

^[123]Id.

^[124]Id.

^[125]Brenda Cossman,"Disciplining the Unruly: Sexual Outlaws, Little Sisters and the Legacy of Butler"(2003) 36 U.B.C. L. Rev. 77.