By Fr. Joaquin G. Bernas S.J.
Art, or what different people call art, is or can be a form of expression. Like any expression it is protected by the freedom of speech clause of the Constitution. There are only two forms of expression that are not protected by the Constitution: libel and obscenity. Sacrilegious expression which is not libelous nor obscene is protected.
Art can be libelous if it projects something that is untrue about another in a manner that does harm to a person or to his reputation by tending to bring the object of the art into ridicule, hatred or contempt by others. Libel is presumed to be malicious and can be the basis of award for damages.
Art can also be obscene. But what is obscenity? The basic guidelines for a court trying to determine whether a particular work is obscene are: “(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.” These are guidelines which Philippine jurisprudence has accepted.
But stricter guidelines are also accepted in situations where material is forced on minors who are not looking for it, as for instance in television shows during hours when minors can be presumed to be still watching. Our Court has called it “relative obscenity.”
I understand that a court case, (whether criminal or civil, I do not know), has been filed against the officers of the Cultural Center of the Philippines and against the artist of the exhibit. Those suing will be hard put to prove obscenity or libel on the basis of the accepted standards for these offenses. Whose honor or reputation are being maliciously damaged? What patently offensive sexual conduct is being depicted? The suit might also be for “immoral doctrines and exhibitions” under Article 201 of the Penal Code. We will all be watching how far such a suit can prosper. Since art, even ugly art, is a form of expression, it can be made punishable only when it presents a clear and present danger of an evil which the state has the right to prevent.
I come now to the other aspect of freedom of expression, namely the freedom not to speak. Since the CCP has withdrawn the exhibit, this means that the CCP has decided to discontinue its sponsorship of the exhibit. In other words, the CCP has decided to exercise its right not to speak. But it is not thereby saying that the objects may not be exhibited elsewhere. (By discontinuing the exhibit, however, was there a violation of contract? That is another question.)
But, as is well known, the CCP was created through Executive Order 30 for the purpose of promoting and preserving Filipino arts and culture. As its website says, it has sought “to truly embody its logo of katotohanan (truth), kagandahan (beauty) and kabutihan (goodness).”
The question I would ask is whether the CCP, a government agency, may be compelled to show whatever artists feel should be shown. Put differently, is the CCP free to choose what it wants to show without violating freedom of expression?
While what is expressly guaranteed by the Constitution is the freedom of speech or expression, the guarantee does not exclude the freedom not to speak. The freedom not to speak is pure common sense such that, perhaps, for this reason there is no constitutional provision specifically guaranteeing it.
From where I sit, I see the problem confronting the CCP as analogous to the problem of local governments in deciding whether to allow a monument in a public park. The government has the right to choose what permanent monuments it may sponsor in government parks. Although a public park is a traditional public forum, the display of a permanent monument in a public park is a form of “government speech.” No one can dictate to government what speech it should make or sponsor. As one decision puts it: “Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”
Accordingly, cities take some care in accepting donated monuments. They may not be compelled to accept everything offered. The monuments that are accepted have the effect of conveying a government message, and thus constitute government speech.
I look at exhibits in the CCP in an analogous way. The CCP is a government institution missioned to display what it considers to be katotohanan (truth), kagandahan (beauty) and kabutihan (goodness) and not what others consider to be such. Artists whose work the CCP does not accept are free to exhibit their work elsewhere. The issue is not freedom of speech but freedom not to speak.