U.S. vs. Kottinger, 45 Phil 352
U.S. vs. Kottinger, 45 Phil 352
We come now to decide the main issue. We repeat that Considerable light can be thrown on the subject by
our own researches have confirmed the statement of turning to the Federal Laws prohibiting the use of the
counsel that no one parrallel case be found. We must mails for obscene matter and prohibiting the importation
perforce reason from the general to the specific and from into the Philippine Islands of articles, etc., of obscene or
universal principle to actual fact. indecent character. (U. S. Rev. Stat., art. 3893; 36 stat.
at L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].)
The pictures which it is argued offend against the law on
account of being obscene and indecent, disclose six "Obscene," as used in the Federal Statutes making it a
different postures of non-Christian inhabitants of the criminal offense to place in the mails any obscene, lewd,
Philippines. Exhibit A carries the legend "Philippines, or lascivious publication, according to the united States
Bontoc Woman." Exhibit A-1 is a picture of five young Supreme Court and lesser Federal courts, signifies that
form of immorality which has relation to sexual impurity, matter, the reading whereof would have a
and has the same meaning as is given at common law in tendency to deprave and corrupt the
prosecutions for obscene libel. (Swearingen vs. U. S. minds of those into whose hands the
[1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., publication might fall whose minds are
41; 6 Words and Phrases, 4888, 4889.) open to such immoral influences."
The case of United States vs. Harmon ([189], 45 Fed., Laws of this character are made for society in the
414), grew out of an indictment for despositing an aggregate, and not in particular. So, while there
obscene publication in a United States post-office in may be individuals and societies of men and
violator of the Postal Law. Judge Philips said: women of peculiar motions are idiosyncrasies,
whose moral sense would neither be depraved
The statute does not undertake to define the meaning of nor offended by the publication now under
the terms "obscene," etc., further than may be implied by consideration, yet the exceptional sensibility, or
the succeeding phrase, "or other publication of an want of sensibility, of such cannot be allowed as
indecent character." On the well-organized canon of a standard by which its obscenity or indecency is
construction these words are presumed to have been to be tested. Rather is the test, what is the
employed by the law-maker in their ordinary acceptation judgment of the aggregate sense of the
and use. community reached by it? What is its probable,
reasonable effect on the sense of decency,
As they cannot be said to have acquired any purity, and chastity of society, extending to the
technical significance as applied to some family, made up of men and women, young boys
particular matter, calling, or profession, but are and girls, the family, which is the common
terms of popular use, the court might perhaps nursery of mankind, the foundation rock upon
with propriety leave their import to the presumed which the state reposes?
intelligence of the jury. A standard dictionary
says that "obscene" mean "offensive to chastity . . . To the pure all things are pure, is too poetical
and decency; expressing or presenting to the for the actualities of practical life. There is in the
mind or view something which delicacy, purity, popular conception and heart such a thing as
and decency forbid to be exposed." This mere modesty. It was born in the Garden of Eden.
dictionary definition may be extended or After Adam and Eve ate of the fruit of the tree of
amplified by the courts in actual practice, knowledge they passed from the condition of
preserving, however, its essential though, and perfectibility which some people nowadays aspire
having always due regard to the popular and to, and, their eyes being opened, they discerned
proper sense in which the legislature employed that there was both good and evil; "and they
the term. Chief Justice Cockburn, in Rex vs. knew that they were naked; and they sewed fig
Hicklin (L. R. 3 Q. B., 360), said: "The test of leaves together, and made themselves aprons."
obscenity is this: Where the tendency of the From that day to this civilized man has carried
matter charged as obscene is to deprave and with him the sense of shame, the feeling that
corrupt those whose minds are open to such there were some things on which the eye the
immoral influences, and into whose hands a mind should not look; and where men and
publication of this sort may fall;" and where "it women become so depraved by the use, or so
who suggest to the minds of the young of either insensate from perverted education, that they will
sex, or even to persons of more advanced years, not evil their eyes, nor hold their tongues, the
thoughts of the most impure and libidinous government should perform the office for them in
character." So, also, it has been held that a book protection of the social compact and the body
is obscene which is offensive to decency or politic.
chastity, which is immodest, which is indelicate,
impure, causing lewd thoughts of an immoral As above intimated, the Federal statue prohibits the
tendency." U. S. vs. Bennet, 16 Blatchf., 338. importation or shipment into the Philippine Islands of the
Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., following: "Articles, books, pamphlets, printed matter,
732, observed: manuscripts, typewritten matter, paintings, illustrations,
figures or objects of obscene or indecent character or
"The word "obscene" ordinarily means subversive of public order." There are, however, in the
something which is offensive to chastity; record, copies of reputable magazines which circulate
something that is foul or filthy, and for freely thruout the United States and other countries, and
that reason is offensive to pure-minded which are admitted into Philippines without question,
persons. That is the meaning of the word containing illustrations identical in nature to those
in the concrete; but when used, as in the forming the basis of the prosecution at bar. Publications
statute, to describe the character of a of the Philippine Government have also been offered in
book, pamphlet, or paper, it means evidence such as Barton's "Ifugao Law," the "Philippine
containing immodest and indecent Journal of Science" for October, 1906, and the Reports
of the Philippine Commission for 1903, 1912, and 1913, Johnson, Street, Avancea, Villamor and Johns, JJ.,
in which are found illustrations either exactly the same or concur.
nearly akin to those which are now impugned.
Mr. Chief Justice Manuel Araullo was present at the time
It appears therefore that a national standard has been this case was voted and then voted with Mr. Justice
set up by the Congress of the United States. Tested by Romualdez. (Sgd.) E. FINLEY JOHNSON.
that standard, it would be extremely doubtful if the
pictures here challenged would be held obscene or
indecent by any state of Federal court. It would be
particularly unwise to sanction a different type of
censorship in the Philippines that in the United States, or
for that matter in the rest of the world.