People vs. Kottinger

Photographs that truthfully portray non-Christian inhabitants of the Philippines in their native dress as they appear and can be seen in the regions in which they live are not obscene or indecent within the meaning of section 12 of Act No. 277. The test of obscenity is whether the matter has a tendency to deprave or corrupt those whose minds are open to such immoral influences and whether it shocks the ordinary and common sense of men as an indecency; the standard is the judgment of the aggregate sense of the community, not the exceptional sensibility of particular individuals.

J. J. Kottinger managed the Camera Supply Co. at 110 Escolta, Manila. On November 24, 1922, a police detective raided the store and confiscated several postcards. The postcards displayed non-Christian inhabitants of the Philippines—from Bontoc, Ifugao, Igorot, Kalinga, and Moro groups—in native dress. The prosecution acknowledged that the pictures “represented the natives (non-Christians) in their native dress.” The defense adduced expert testimony, including that of Dr. H. Otley Beyer of the University of the Philippines, establishing that the images were true to life and that the costumes shown were the regular attire actually worn by the subjects in their respective localities. The question, never before decided in the Philippines or, apparently, in the United States or Great Britain, was whether such truthful depictions could be deemed obscene or indecent.

• The Raid and Seizure: On November 24, 1922, Detective Juan Tolentino raided the Camera Supply Co. at 110 Escolta, Manila. He found and confiscated several postcards that later served as evidence against J. J. Kottinger, the store manager.
• The Postcards: Six different postures of non-Christian inhabitants of the Philippines were involved. Exhibit A showed a Bontoc Woman; A-1 depicted five young boys with the legend “Greetings from the Philippines”; A-2, an Ifugao Belle; A-3, an “Igorot Girl, Rice Field Costume”; A-4, Kalinga Girls; and A-5, Moros. The prosecution admitted that the pictures “represented the natives (non-Christians) in their native dress.”
• Defense Evidence: Dr. H. Otley Beyer, a University of the Philippines professor and authority on Philippine ethnology, testified that he had personally observed all the poses depicted and that the costumes shown were the true costumes regularly worn by these groups in their respective regions—the Mountain Province, Abra, Palawan, Mindanao, and Sulu. Other witnesses corroborated this testimony.
• Prosecution’s approach: The prosecution presented no extrinsic evidence that the postcards were obscene, taking the position that the photographs themselves were the best evidence of their allegedly obscene and indecent character.
• Federal and international context: The record contained copies of reputable magazines circulating freely in the United States and admitted into the Philippines without objection, which carried illustrations identical in nature to the impugned postcards. Official Philippine government publications—including Barton’s “Ifugao Law,” the Philippine Journal of Science, and Reports of the Philippine Commission—also contained photographs exactly the same or closely akin to those at issue. Federal law prohibited the importation or mailing of obscene articles, yet such materials were routinely admitted.
• Counsel’s representation: Kottinger’s counsel stated that the proprietor of the photographic concern would, on his own initiative, place suitable and explicit inscriptions on the pictures and might even withdraw certain prints from sale in consideration of customer sensibilities.

• Statutory Coverage: Whether section 12 of Act No. 277, which punishes any person who keeps for sale any obscene or indecent “writing, paper, book, or other matter,” applies to photographic postcards.
• Obscenity and Indecency: Whether postcards portraying non-Christian inhabitants of the Philippines in their native dress, truthfully depicting them as they appear in their own regions, are obscene or indecent within the meaning of the law.

• Statutory Coverage: The information was not fatally defective, and section 12 covers photographic pictures. The phrase “or other matter” is a catch-all intended to cover kindred subjects. The rule of ejusdem generis is not of universal application and should serve to carry out, not defeat, the legislative purpose. Even if the phrase is construed as “or other matter of like kind,” pictures and postcards are not so far unrelated to writings, papers, and books as to fall outside the statutory language. Moreover, Article 571(2) of the Penal Code and section 730 of the Revised Ordinances of Manila specifically cover obscene pictures, confirming that the legislative scheme reaches such material.
• Obscenity and Indecency: The postcards were neither obscene nor indecent. “Obscene” means something offensive to chastity, decency, or delicacy; the settled test is whether the matter has a tendency to deprave or corrupt those whose minds are open to immoral influences and whether it shocks the ordinary and common sense of men as an indecency. Adopting the standard articulated by U.S. federal courts, obscenity relates to sexual impurity and is measured by the judgment of the aggregate sense of the community—not by the exceptional sensitivity or insensibility of particular individuals. The pictures merely depict persons as they actually live, without presenting them in unusual postures or dress. The aggregate moral sense of the Philippine community would not be shocked by such photographs. Reinforcing this conclusion, identical images appeared in reputable international magazines, United States government publications, and Philippine official reports that circulated without objection. It would be particularly unwise to sanction a different type of censorship in the Philippines than that prevailing in the United States.

• Test of Obscenity and Indecency — A matter is obscene if it is offensive to chastity, decency, or delicacy; the definitive test is whether it has a tendency to deprave or corrupt those whose minds are open to such immoral influences and into whose hands it may fall, or whether it shocks the ordinary and common sense of men as an indecency. The standard is the probable, reasonable effect on the sense of decency, purity, and chastity of society in the aggregate—extending to the family, composed of men and women, young boys and girls—not the exceptional sensibility or want of sensibility of particular individuals. The photographs in this case, being truthful depictions of native attire and not calculated to corrupt or shock the community, did not meet this standard.
• Ejusdem Generis as a Flexible Canon — The rule of ejusdem generis is not a rule of universal application; it should be applied to carry out, not to defeat, the legislative intent. A general catch-all phrase such as “or other matter” in a penal statute may be read to cover kindred subjects not expressly enumerated if they are not so far unrelated as to fall outside the legislative purpose. Photographs and postcards were thus held to be within “writing, paper, book, or other matter.”
• Community Standard in Obscenity — Obscenity is judged by the national or community standard, not by local or idiosyncratic moral views. Because the United States Congress had set a national standard by admitting identical publications, the Philippines should not sanction a more restrictive censorship regime. The aggregate judgment of the Philippine community, not the sensibilities of any single place like Manila, is controlling.

• “The question to be here decided is whether or not pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are obscene or indecent.” (Opening of the opinion, framing the novel issue.)
• “The test of obscenity is this: Where the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall; and where it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous character.” (Quoting Rex vs. Hicklin, adopted as the controlling standard.)
• “Laws of this character are made for society in the aggregate, and not in particular. … Rather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls, — the family, which is the common nursery of mankind, the foundation rock upon which the state reposes?” (Quoting United States vs. Harmon, articulating the community standard.)
• “We hold that pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are not obscene or indecent within the meaning of the Libel Law.” (The ratio decidendi.)

• Commonwealth vs. Dejardin (126 Mass. 46) and Brown vs. Corbin (40 Minn. 508) — Cited in support of the conclusion that the phrase “or other matter” covers kindred subjects such as pictures, rejecting a strict ejusdem generis reading.
• Swearingen vs. United States (161 U.S. 446) and United States vs. Males (51 Fed. 41) — Defined “obscene” under the Federal postal statute as signifying immorality related to sexual impurity, in accord with the common-law meaning.
• United States vs. Harmon (45 Fed. 414) — Extensively quoted; supplied the controlling test of obscenity based on tendency to deprave or corrupt and on the aggregate sense of the community.
• Rex vs. Hicklin (L.R. 3 Q.B. 360) — Origin of the classic obscenity test, adopted and applied.
• People vs. Muller (96 N.Y. 408) — Stated that whether a picture is obscene or indecent depends upon the circumstances of the case.

• Section 12, Act No. 277 (Libel Law) — Punishes any person who keeps for sale or exhibits any obscene or indecent writing, paper, book, or other matter, or who prepares any obscene picture or print. Applied to photographic postcards as “other matter” of like kind, and held not violated because the pictures were not obscene or indecent.
• Section 730, Revised Ordinances of the City of Manila — Specifically forbids the exhibition, sale, or distribution of any lewd, indecent, or obscene book, picture, pamphlet, card, print, or other thing. Mentioned to demonstrate that pictures were clearly covered under related law, reinforcing the conclusion that the Libel Law likewise reached them.
• United States Revised Statutes, Article 3893; 36 Stat. at L. 135; 7 Fed. Stat. Ann. 1194, section 3(b) — Federal provisions prohibiting the mailing and importation of obscene or indecent articles, cited to establish the national standard against which the Philippine enforcement should be measured.

Johnson, Street, Avanceña, Villamor, and Johns, JJ., concurred. (Chief Justice Araullo was present when the case was voted and voted with the dissent.)

• Justice Romualdez, joined by Chief Justice Araullo — Dissented on the ground that while the pictures could not strictly be termed obscene, they were indecent because they offended modesty and refinement. Common sense, the dissent argued, showed that no woman claiming to be decent would appear in public in Manila in the same manner as the figures in the photographs. Although such attire might not be regarded as offensive in the non-Christian regions where the pictures were taken, in the City of Manila—where the postcards were exhibited—they were unquestionably indecent. The dissent would have affirmed the conviction, as the law prohibits indecent as well as obscene matter.