The Court of Appeals’ 12th Division rewrote free speech to uphold a jail sentence for tour guide, artist and activist Carlos Celdran.

On Sept. 30. 2010, Celdran donned a Jose Rizal-era bowler hat and black suit and entered the Manila Cathedral. He silently strode down the aisle, bowed before the altar, then held up a placard with the word “DAMASO,” Padre Damaso being Rizal’s caricature of an abusive priest. He interrupted an ecumenical meeting (not a Mass) of leaders of various denominations, including the papal nuncio.

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Some in the audience thought he was part of the program, and one witness thought Damaso referred to St. Jerome’s secretary. As he was led out, he shouted, “Bishops, stop involving yourself in politics!” He meant their intense public opposition to reproductive health legislation. Celdran was convicted of the crime “offending religious feelings” under a law passed in 1930.

The issue is not whether Celdran was disrespectful. The issue is whether he should be jailed over speech, however rude.

Both appellate and trial court quoted Justice Luis Reyes’ authoritative textbook. The crime is established when acts “notoriously offensive to the feelings of the faithful” are performed “in a place devoted to religious worship.” The latter includes a cathedral. Guilt thus hinges on what “notoriously offensive” means.

The trial court, again quoting Reyes, held that acts must be “directed against religious practice or dogma or ritual for the purpose of ridicule.” Not all acts are criminally offensive. Since Carlos lampooned the bishops’ secular, political acts, there was no dogma. I pointed out that the trial court failed to identify any dogma and, by its own wording, omitted a key element of the crime, making its decision void (“Celdran jailed for offending political feelings,” Opinion, 1/31/13).

The appellate decision clumsily sidestepped this fatal defect by discarding Reyes and diluting “notoriously offensive” into “causes someone to feel resentful, upset or annoyed” in the ordinary sense. It astonishingly added, “whether he is a member of the particular religion concerned or not; whether he is present or absent thereat.” Not only does this contradict freshman criminal law classes, it rewrites free speech: The question of whether an idea is protected now depends on whether it upsets the audience. This rewrite destroys free speech because everything down to “The Earth is round” is potentially upsetting. Constitutional law prohibits the “heckler’s veto,” where an audience member claims to be provoked into a violent response, thus censoring the speaker when authorities ask him to stop to restore order.

Further, regardless of what “notoriously offensive” means, the crime has a blatantly unconstitutional definition because it is “viewpoint discrimination.”

A rule restricting speech is valid if it is “content neutral” or blind to content. Examples include “No megaphones after 8 PM” and “Get a permit if you want to rally in the middle of Edsa.” “Content based” rules, such as “Communist theory is prohibited in university classes,” face a high threshold. Narrow “content based” rules, whose urgency is evident, pass—e.g., “No bomb jokes in airports only” or “No broadcasting of police positions while a hostage situation is ongoing.”

Freshman classes skip this because it is obvious, but it is far harder to justify a “viewpoint based” rule than a “content based” one. The former prohibits a category of content with a certain viewpoint and allows the rest. For example, “Newspapers may not discuss the President” is bad enough, but “Newspapers may discuss the President only if they will praise him” is impossible to defend.

The crime “offending religious feelings” is precisely this, especially with the appellate court’s expansive interpretation that anything that upsets the audience is “notoriously offensive.” It is not a simple prohibition on disruption in a place of worship. As Prof. Harry Roque protested, it is an archaic “lese majeste” law that will always be selectively enforced. There would be no jail term had Celdran walked into the cathedral dead drunk or shouting “I love Jesus” with a megaphone. But he is inexplicably a felon because he did so with a brutally effective political message: Modern-day Damasos, stay out of politics!

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Instead of addressing the extremely basic viewpoint discrimination issue I previously raised (“P-Noy big bully?”, Opinion, 6/27/14), the appellate decision brushed free speech aside by using a doctrine from the Third Reich: “‘DAMASO’ is not protected speech but rather an insulting word,” “each individual should be circumspect in setting loose every word that flows from his/her mouth” and “raising a placard with the word ‘DAMASO’ inflicts injury or tends to incite an immediate breach of peace in that place of worship.” The last is belied by witness accounts that the decision itself quoted and makes it sound like Celdran was carrying an AK-47 into the offices of Charlie Hebdo. Exaggeratedly, the decision even argued that “a litigant [should not be allowed] to assail the constitutionality of a statute every time he is charged with a violation,” turning the Constitution’s primacy on its head.

If you protest the brazen murders at Charlie Hebdo over its offensive cartoons, then you must all the more protest Celdran’s jail term. The decision is a far more dastardly blow to free speech than a rocket launcher in the street because it conscripts our very judiciary into reversing doctrine for a vendetta on a political speaker. Our president must not stand by this slaughter of democratic principle, and our Supreme Court must reinstate the true meaning of what our martial law heroes died for.

#JeSuisCarlos?

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Read the full decision at facebook.com/OscarFranklinTan.

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