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EN BANC

[ G.R. No. 119673. July 26, 1996

IGLESIA NI CRISTO (INC.), Petitioner, v. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDEZ, Respondents.

D E C I S I O N

PUNO, J.:

This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the respondent Board of Review for Motion Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and propagates petitioners religious beliefs, doctrines and practices often times in comparative studies with other religions.

Sometime in the months of September, October and November 1992, petitioner submitted to the respondent Board of Review for Motion Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law."

Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to the Office of the President the classification of its TV Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the RTC, NCR, Quezon City. ¹ Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under P.D. No. 1986 in relation to Article 201 of the Revised Penal Code.

On January 4, 1993, the trial court held a hearing on petitioners prayer for a writ of preliminary injunction. The parties orally argued and then marked their documentary evidence. Petitioner submitted the following as its exhibits, viz.:

(1) Exhibit "A", respondent Boards Voting Slip for Television showing its September 9, 1992 action on petitioners Series No. 115 as follows: ²cräläwvirtualibräry

REMARKS:

There are some inconsistencies in the particular program as it is very surprising for this program to show series of Catholic ceremonies and also some religious sects and using it in their discussion about the bible. There are remarks which are direct criticism which affect other religions.

Need more opinions for this particular program. Please subject to more opinions.

(2) Exhibit "A-1", respondent Boards Voting Slip for Television showing its September 11, 1992 subsequent action on petitioners Series No. 115 as follows: ³cräläwvirtualibräry

REMARKS:

This program is criticizing different religions, based on their own interpretation of the Bible.

We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks on other faith.

(3) Exhibit "B", respondent Boards Voting Slip for Television showing its October 9, 1992 action on petitioners Series No. 119, as follows: ⁴cräläwvirtualibräry

REMARKS:

The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so.

This is intolerance and robs off all sects of freedom of choice, worship and decision.

(4) Exhibit "C", respondent Boards Voting Slip for Television showing its October 20, 1992 action on petitioners Series No. 121 as follows: ⁵cräläwvirtualibräry

REMARKS:

I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the Catholic religion.

I refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong, which they clearly present in this episode.

(5) Exhibit "D", respondent Boards Voting Slip for Television showing its November 20, 1992 action on petitioners Series No. 128 as follows: ⁶cräläwvirtualibräry

REMARKS:

The episode presented criticizes the religious beliefs of the Catholic and Protestants beliefs.

We suggest a second review.

(6) Exhibits "E", "E-1", petitioners block time contract with ABS-CBN Broadcasting Corporation dated September 1, 1992. ⁷cräläwvirtualibräry

(7) Exhibit "F", petitioners Airtime Contract with Island Broadcasting Corporation. ⁸cräläwvirtualibräry

(8) Exhibit "G", letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the respondent Board which x-rated the showing of petitioners Series No. 129. The letter reads in part:

"xxx xxx xxx

The television episode in question is protected by the constitutional guarantee of free speech and expression under Article III, Section 4 of the 1987 Constitution.

We have viewed a tape of the television episode in question, as well as studied the passages found by MTRCB to be objectionable and we find no indication that the episode poses any clear and present danger sufficient to limit the said constitutional guarantee."

(9) Exhibits "H", "H-1", letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to President Fidel V. Ramos appealing the action of the respondent Board x-rating petitioners Series No. 128.

On its part, respondent Board submitted the following exhibits, viz.:

(1) Exhibit "1", Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992 allowing the showing of Series No. 128 under parental guidance.

(2) Exhibit "2", which is Exhibit "G" of petitioner.

(3) Exhibit "3", letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era Broadcasting Service which reads in part:

x x x

In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please be informed that the Board was constrained to deny your show a permit to exhibit. The material involved constitute an attack against another religion which is expressly prohibited by law. Please be guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on petitioners bond of P10,000.00.

The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. ⁹ The pre-trial briefs show that the parties evidence is basically the evidence they submitted in the hearing of the issue of preliminary injunction. The trial of the case was set and reset several times as the parties tried to reach an amicable accord. Their efforts failed and the records show that after submission of memoranda, the trial court rendered a Judgment, ¹⁰ on December 15, 1993, the dispositive portion of which reads:

"x x x

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the series of Ang Iglesia ni Cristo program.

Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing religions in showing Ang Iglesia ni Cristo program.

SO ORDERED."

Petitioner moved for reconsideration ¹¹ praying: (a) for the deletion of the second paragraph of the dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to submit for review the tapes of its program. The respondent Board opposed the motion. ¹² On March 7, 1993, the trial court granted petitioners Motion for Reconsideration. It ordered: ¹³cräläwvirtualibräry

"x x x

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Courts Order dated December 15, 1993, directing petitioner to refrain from offending and attacking other existing religions in showing Ang Iglesia ni Cristo program is hereby deleted and set aside. Respondents are further prohibited from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious program Ang Iglesia ni Cristo."

Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. ¹⁴cräläwvirtualibräry

On March 5, 1995, the respondent Court of Appeals ¹⁵ reversed the trial court. It ruled that: (1) the respondent board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials constitute an attack against another religion. It also found the series "indecent, contrary to law and contrary to good customs."

In this petition for review on certiorari under Rule 45, petitioner raises the following issues:

I

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ANG IGLESIA NI CRISTO PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE ANG IGLESIA NI CRISTO PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT DANGER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.

IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE ANG IGLESIA NI CRISTO, A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioners TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely abused its discretion when it prohibited the airing of petitioners religious program, series Nos. 115, 119 and 121, for the reason that they constitute an attack against other religions and that they are indecent, contrary to law and good customs.

The first issue can be resolved by examining the powers of the Board under P.D. No. 1986. Its Section 3 pertinently provides:

"Sec. 3 Powers and Functions. The BOARD shall have the following functions, powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution for television broadcast or for general viewing, imported or produced in the Philippines and in the latter case, whether they be for local viewing or for export.

c) To approve, delete objectionable portion from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials, subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are sub-judice in nature (emphasis ours).

The law gives the Board the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has the power to "approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x." The law also directs the Board to apply "contemporary Filipino cultural values as standard" to determine those which are objectionable for being "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime."

Petitioner contends that the term "television program" should not include religious programs like its program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene Section 5, Article III of the Constitution which guarantees that "no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed."

We reject petitioners submission which need not set us adrift in a constitutional voyage towards an uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present. We have affirmed this preferred status well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good." ¹⁶ We have also laboriously defined in our jurisprudence the intersecting umbras and penumbras of the right to religious profession and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: ¹⁷cräläwvirtualibräry

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on ones beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. Men may believe what they cannot prove. Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes.

(2) Freedom to Act on Ones Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be, religious freedom, like all the other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.

Justice Frankfurter put it succinctly: The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.

Accordingly, while one has full freedom to believe in Satan, he may not offer the object of his piety a human sacrifice, as this would be murder. Those who literally interpret the Biblical command to "go forth and multiply" are nevertheless not allowed to contract plural marriages in violation of the laws against bigamy. A person cannot refuse to pay taxes on the ground that it would be against his religious tenets to recognize any authority except that of God alone. An atheist cannot express his disbelief in acts of derision that wound the feelings of the faithful. The police power can be validly asserted against the Indian practice of the suttee born of deep religious conviction, that calls on the widow to immolate herself at the funeral pile of her husband.

We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this stultifying strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to settle the near century old strife in Mindanao, the roots of which have been nourished by the mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of weird religious cults espousing violence as an article of faith also proves the wisdom of our rule rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to subject any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still.

It is also petitioners submission that the respondent appellate court gravely erred when it affirmed the ruling of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the respondent Board disallowed the program series for "attacking" other religions. Thus, Exhibits "A", "A-1", (respondent Boards Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for "x x x criticizing different religions, based on their own interpretation of the Bible." They suggested that the program should only explain petitioners "x x x own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-rated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance x x x." Exhibit "C" shows that Series No. 121 was x-rated "x x x for reasons of the attacks, they do on, specifically, the Catholic religion. x x x (T)hey can not tell, dictate any other religion that they are right and the rest are wrong x x x." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it "x x x outrages Catholic and Protestants beliefs." On second review, it was x-rated because of its "unbalanced interpretations of some parts of the Bible." ¹⁸ In sum, the respondent Board x-rated petitioners TV program series Nos. 115, 119, 121 and 128 because of petitioners controversial biblical interpretations and its "attacks" against contrary religious beliefs. The respondent appellate court agreed and even held that the said "attacks" are indecent, contrary to law and good customs.

We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. ¹⁹ It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" other religions, especially the Catholic church. An examination of the evidence, especially Exhibits "A", "A-1", "B, "C", and "D" will show that the so-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing under Section 3(c) of PD 1986. This ruling clearly suppresses petitioners freedom of speech and interferes with its right to free exercise of religion. It misappreciates the essence of freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut, ²⁰ viz.:

xxx xxx xxx

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are prominent in church or state or even to false statements. But the people of this nation have ordained in the light of history that inspite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of democracy.

The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.

Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the religious program of petitioner. Even a sideglance at Section 3 of PD 1986 will reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioners television program. The ground "attack against another religion" was merely added by the respondent Board in its Rules. ²¹ This rule is void for it runs smack against the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to enforce.

It is opined that the respondent board can still utilize "attack against any religion" as a ground allegedly "x x x because Section 3 (c) of PD 1986 prohibits the showing of motion pictures, television programs and publicity materials which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows which offend any race or religion." We respectfully disagree for it is plain that the word "attack" is not synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify the subsequent punishment of a show which offends any religion. It cannot be utilized to justify prior censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included "attack against any religion" as a ground for censorship. The ground was not, however, carried over by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the Executive Department espouses this view. Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali Gonzales explained:

"x x x

"However, the question whether the BRMPT (now MTRCB) may preview and censor the subject television program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of censorship, to wit: immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people or with dangerous tendency to encourage the commission of violence, or of a wrong as determined by the Board, applying contemporary Filipino cultural values as standard. As stated, the intention of the Board to subject the INCs television program to previewing and censorship is prompted by the fact that its religious program makes mention of beliefs and practices of other religion. On the face of the law itself, there can conceivably be no basis for censorship of said program by the Board as much as the alleged reason cited by the Board does not appear to be within the contemplation of the standards of censorship set by law." (Italics supplied)

Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. In American Bible Society v. City of Manila, ²² this Court held: "The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be justified like other restraints on freedom of expression on the ground that there is a clear and present danger of any substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, ²³ we further ruled that "x x x it is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger."

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.

It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the United States, it is true that the clear and present danger test has undergone permutations. It was Mr. Justice Holmes who formulated the test in Schenck v. US, ²⁴ as follows: "x x x the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Admittedly, the test was originally designed to determine the latitude which should be given to speech that espouses anti-government action. Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of the forties, when its umbrella was used to protect speech other than subversive speech. ²⁵ Thus, for instance, the test was applied to annul a total ban on labor picketing. ²⁶ The use of the test took a downswing in the 1950s when the US Supreme Court decided Dennis v. United States involving communist conspiracy. ²⁷ In Dennis, the components of the test were altered as the High Court adopted Judge Learned Hands formulation that "x x x in each case [courts] must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The imminence requirement of the test was thus diminished and to that extent, the protection of the rule was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg v. Ohio, ²⁸ when the High Court restored in the test the imminence requirement, and even added an intent requirement which according to a noted commentator ensured that only speech directed at inciting lawlessness could be punished. ²⁹ Presently in the United States, the clear and present danger test is not applied to protect low value speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial. ³⁰ Hence, even following the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.

It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil apprehended cannot be established. The contention overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not unreasonable to assume that the respondent Board, with its expertise, can determine whether its sulphur will bring about the substantive evil feared by the law.

Finally, it is also opined by Mr. Justice Kapunan that "x x x the determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an administrative body such as a Board of Censors." He submits that a "system of prior restraint may only be validly administered by judges and not left to administrative agencies." The same submission is made by Mr. Justice Mendoza.

This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual Enterprise v. Day. ³¹ By 1965, the US Supreme Court in Freedman v. Maryland ³² was ready to hold that "the teaching of cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." ³³cräläwvirtualibräry

While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, ³⁴ viz.:

"The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character.

On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise of executive power, is extremely delicate in nature and can only be justified where the statute is unequivocably applicable to the supposed objectionable publication. In excluding any publication for the mails, the object should be not to interfere with the freedom of the press or with any other fundamental right of the people. This is the more true with reference to articles supposedly libelous than to other particulars of the law, since whether an article is or is not libelous, is fundamentally a legal question. In order for there to be due process of law, the action of the Director of Posts must be subject to revision by the courts in case he had abused his discretion or exceeded his authority. (Ex-parte Jackson [1878], 96 U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)

As has been said, the performance of the duty of determining whether a publication contains printed matter of a libelous character rests with the Director of Posts and involves the exercise of his judgment and discretion. Every intendment of the law is in favor of the correctness of his action. The rule is (and we go only to those cases coming from the United States Supreme Court and pertaining to the United States Postmaster-General), that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether or not courts alone are competent to decide whether speech is constitutionally protected. ³⁵ The issue involves highly arguable policy considerations and can be better addressed by our legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioners TV program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating petitioners TV Program Series Nos. 115, 119, and 121. No costs.

SO ORDERED.

Regalado, Davide, Jr., Romero, Francisco, and Torres, Jr., JJ., concur.

Padilla, Melo, and Kapunan, JJ., see concurring and dissenting opinion.

Hermosisima, Jr., J., joins the concurring and dissenting opinion of J. Kapunan.

Panganiban, JJ., see separate concurring opinion.

Vitug, and Mendoza, JJ., see separate opinion.

Narvasa, C.J., in the result.

Bellosillo, J., on leave.