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Freedom of Artistic Expression: Examining Blasphemous Artworks in Public Museums Ma. Vanessa Hernandez Mary Grace Rementina Far Eastern University Institute of Law JD4103 I. INTRODUCTION In the Philippines, freedom o
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  Freedom of Artistic Expression: Examining Blasphemous Artworks in Public Museums  Ma. Vanessa Hernandez  Mary Grace Rementina Far Eastern University Institute of Law JD4103 I. INTRODUCTION In the Philippines, freedom of expression is one of the fundamental postulates of our constitutional system. It is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. 1  Jurisprudence proves that freedom expression is indeed essential and not to be curtailed except for a very few circumstances. However, there is no specific law or jurisprudence which tackles the scope and limits of artistic expression. II. STATEMENT OF THE PROBLEM Whether or not the three tests of restraints on freedom of speech and expression, i.e., (a) the dangerous tendency doctrine; (b) the balancing of interests tests; and (c) the clear and present danger rule, are appropriate and sufficient in examining artworks exhibited in public museums or in other venues funded by the government.  III. OBJECTIVES    To clarify the boundaries of freedom of artistic expression in public museums    To determine whether the tests of restraints of freedom of speech and expression are also applicable and sufficient in artworks or if not, to propose a test specifically for artworks IV. SIGNIFICANCE OF THE STUDY This study, which seeks to examine a particular aspect of the freedom of expression that has never  been actually dealt with, may be a means of developing a better set of guidelines for artistic expression. Art may be interpreted in so many ways by different people. Understanding the boundaries of freedom of artistic expression safeguards not only the rights of artists but also of the public who goes into public museums. 1   Chavez v. Gonzales , 545 SCRA 441 (15 February 2008).  V. SCOPE AND LIMITATIONS This study focuses on artworks exhibited in public museums or in other venues funded by the government. Moreover, the subject or the elements of said artworks shall be related to Christian and Catholic religion only. VI. CONCEPTS AND DEFINITIONS  A. Freedom of Expression “  No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of  grievances.” 2   Freedom of expression is universally considered as a fundamental right of every person. It is given a  preferred right that stands on a higher level than substantive economic freedom or other liberties. 3  Our history, both political and legal, illustrates that freedom of expression is an indispensable condition for the exercise of other freedoms. 4  The provision on freedom of expression in the 1987 Philippine Constitution was srcinally lifted from the First Amendment of the United States Bill of Rights, which was so crafted because the founders of the American government believed, as a matter of history and experience, that the freedom to express personal opinions was essential to a free government. 5  As discussed in Gonzales v. COMELEC  , 6   this provision entails the liberty to discuss publicly and truthfully any matter of public interest without prior restraint and subsequent punishment. It is essential for the search of truth, for democracy to work properly and for individual self-fulfillment for it is only when the people have unbridled access to information that they can be able to render enlightened judgments and participate in social, including political, decision-making. 7  Freedom of expression as guaranteed by the Constitution not only protects those who favor an existing climate of opinion on any matter of public consequence, but also those who question or who do not conform. 8  To be truly meaningful, it shall allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others, or though such view “induces a condition of unrest, creates dissatisfaction, or even stirs people to anger.” 9  In the case of Terminiello v. City of Chicago , 10  the US Supreme Court held that a function of free speech is to invite dispute and it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. 2   1987 Philippine Constitution , Article III, Section 4. 3  Id., Chavez v. Gonzales . 4  Id. 5  Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review  (2004). 6   Gonzales v. COMELEC  , 27 SCRA 835 (1969). 7  Id. 8    New York Times Co. v. Sullivan , 376 US 254, 270 (1964). 9  Id. 10   Terminiello v. City of Chicago , 337 US 1, 4 (1949).  That is why freedom of speech, though not absolute, is nevertheless protected against censorship or  punishment, unless shown to exceed the following tests: 1.   Clear and present danger This rule means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. The danger to be guarded against is the “substantive evil” sought to be prevented.  In Gonzales v. COMELEC  , 11  the Court has adopted the clear and present danger rule in sustaining the constitutionality of R.A. No. 4880 which prohibited early nomination of candidates and limited the period of election campaign. Senator Lorenzo Tanada, said that R. A. 4880 is valid under the clear and present danger test, there being the substantive evil of elections being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss of efficiency in government and of lives of people. In  Iglesia ni Cristo (INC) v. CA , 12  the Court ruled that INC’s  television show is a valid exercise of freedom of expression. The Board of Review gave INC’s  program an x-rating for attacking other religions by showing the latter’s religious ceremonies while INC interprets the Bible. However, the Court held that such attacks are mere criticisms of some of the deeply held dogmas and tenets of other religions. There is no showing of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech cannot be justified by hypothetical fears but only be the showing of a real, substantive and imminent evil. 2.   Balancing of interests When a particular conduct is regulated in the interest of public order and the regulation results in an indirect abridgment of speech, the courts shall determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. There is a wide range of factors which may be relevant in ascertaining the point of equilibrium such as the following: a.   the social values and importance of a specific aspect of a particular freedom restricted;  b.   the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; c.   the value and importance of public interest sought to be secured by the legislation  –   the reference is to the nature and gravity of the evil which the Congress seeks to prevent; d.   whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and/or 11  Id., Gonzales v. COMELEC  . 12    Iglesia ni Cristo (INC) v. CA , 259 SCRA 529 (1996).  e.   whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom. 13  In  AKBAYAN v. Aquino , 14  the non-disclosure of diplomatic negotiations of Japan-Philippines Economic Partnership Agreement to the public was challenged. The Court held that such negotiations, which are inter-government exchanges prior to the conclusion of executive agreements, are excluded from the right of information. Disclosing the negotiations could impair the ability of the Philippines to deal with other governments in the future and also discourage Philippine representatives from frankly expressing their views during negotiations. In  Lagunzad v. Soto Vda. De Gonzales , 15  Lagunzad produced a movie on the life of the deceased Moises Padilla. It focused on Moises as a mayoralty candidate but there were some parts that dealt with his private and family life including the portrayal of his mother, the respondent. While it is true that most of the depictions of Moises were of public knowledge and occurred at the time that he was a public figure, the limits of freedom of expression are reached when such expression touches upon matters of essentially private concern. 3.   Dangerous tendency This rule means that “if the words uttered create a dangerous tendency which the state has a right to  prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.”  16  In  People v. Perez  , 17  the Court held that no matter how severe a criticism is, it is still within the range of liberty of speech, unless the intent and effect be seditious. Perez made a remark during a  period of great dissatisfaction with Governor General Wood saying, “And the Filipinos, like myself must use bolos   for cutting off Wood’s head for having recommended a bad thing for the Philippines.” Perez’ remarks are not protected by the constitutional right because such are seditious which could easily produce dissatisfaction among the people and it is incompatible with a disposition to remain loyal and obedient to the government. The character of the threatened extermination of Wood was “so excessive and outrageous.”   13    American Communications Association v. Douds , 339 US 383, 94 L Ed 925, 943 (1947). 14    AKBAYAN v. Aquino , 558 SCRA 468 (2008). 15    Lagunzad v. Soto Vda. De Gonzales , 92 SCRA 476 (1979). 16  Id., Gonzales v. COMELEC  . 17    People v. Perez  , 45 Phil. 599 (1923).
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