freedom of expression

[OPINION] Art, comedy, and the ‘right’ to offend

John Molo

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[OPINION] Art, comedy, and the ‘right’ to offend
The filing of criminal charges against drag queen Pura Luka Vega has been brought up. Can 'offensive' speech be punished under the law?

Drag queen Pura Luka Vega is in hot water after a skit performed inside an event circulated beyond its intended audience. Dressed as a religious figure, the performance was accompanied by a religious song central to the Catholic faith. National leaders have weighed in. And the filing of criminal charges (e.g. the Revised Penal Code’s Article 133, Offending Religious Feelings) has been brought up.

Is there a constitutional “right” to offend? Textually, no. But there is a right to speak freely (Art III Sec. 4 of the Constitution). And within that, is the right to advance an opinion that may “shock, offend, or disturb.”

This doesn’t mean that free speech means a free-for-all. In the Philippines, freedom of expression is subject to several exceptions based on the: (a) kind of speech; (b) context (ie time place and manner); or (c) speaker (ie lawyers under the newly revamped Code of ethics). 

So, can “offensive” speech be punished under the law?

The nominal answer (such as in a Bar exam) would be yes (subject to the elements of Art 133). But, really, the question we should be asking in this case is. “Should it be?” Law is littered with nuance (which is why people hate lawyers). And of all the topics under Constitutional Law, I’d daresay that free speech is the most nuanced of all. 

No freedom from consequence

Saying “Yes” means that one is okay to send people to jail for offending someone’s feelings (religious or not). This is the tricky part. Existing laws already address “fighting words,” “true threats,” and defamation. These benefit from a well-defined set of elements that took courts decades to hone.

What is “offensive” however, covers the unpleasant, the unpopular and the irreverent. If it becomes punishable, based on the group chat fights I’ve seen, all of us might end up in jail. 

Still, freedom of speech is not freedom from consequence. If it is the right of a performer to insult and offend, then the rest of us have the equal right to express approval, or in this case, offense. True, the audience doesn’t get to decide what jokes a comedian can tell. However, a comedian cannot dictate how an audience should react. The right to offend, should accommodate the right to take offense. Neither side however, is justified in using violence because that’s where the constitutional protection ends. 

In the case of comedy clubs, these are venues where anything goes. You buy a ticket and go inside, not knowing what the comedians will say. Traditionally, it used to end there. But in the age of smartphones and social media, whatever is said inside these clubs inevitably gets shared outside. Once it’s out there, anything goes. Consider how Jokoy was “cancelled” (for mocking his fellow Filipinos), same as Dave Chappelle (for jokes about transgenders). Both shows were on Netflix.

Double-edged sword

Art, as well as comedy, is a form of expression. This is true. But this is a double-edged sword. If a performance can freely offend the religious, then the same right would be invoked by comedians who offend progressive/liberal sensibilities (such as in the case of Dave Chappelle). Excepting hate speech, artistic and comedic license can protect both sides but, always in a precarious balance to avoid real-world harms.

It would be disingenuous if I didn’t disclose that, as a Catholic, I took offense. But should it mean criminal punishment? I had to remind myself of the disparity in power that lies in these situations. The three branches of our government are all dominated by Christians. On the other side, is one performer, whose infraction is quite literally offending all of us. 

Besides, does my faith impel me to ask that the full force of the law be mobilized against this drag performer? The Holy Father, Pope Francis, has been focused in making the Church much more inclusive. I had the privilege of being in the Vatican with Maria Ressa for the drafting of the Declaration on Human Fraternity. It starts with the Pope’s words reminding that: “We are diverse, we are different, we have different cultures and religions, but we are brothers and sisters and we want to live in peace.” 

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I feel that the Holy See wouldn’t be threatened by a drag performance inside a club. The pillars of St. Peter’s Basilica are made of much sterner stuff. What would weaken any church, however, would be intolerance. Tolerance doesn’t mean suffering quietly. One can call out, express disapproval, and refuse to patronize shows. But not every “offense” should lead to criminal litigation. 

I’ve yet to see a Papal encyclical asking the faithful to teach blasphemers “respect and humility” by threatening them with jail. But I have seen strong words from His Holiness condemning corruption,  violation of human rights, and weaponization of the law. He has in fact said, “we have to raise our voice” against those who abuse the judicial system. With these, I am more “religiously offended” by those to whom the Pope refers to in his speeches, not a lone drag performer.  

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Besides, dusting off Article 133 for use in this context calls for reflection on its origins. The Revised Penal Code stems from the Spanish Codigo Penal. As their colony, it doesn’t require imagination whose “religious feelings” the Spaniards prioritized back then. Not a few native Filipinos must have suffered the consequence of “offending the religious” during that era. It would be ironic if several hundred years later, we the current majority would perpetuate how this tool was abused by our colonizers. If Article 133 should remain in the statute books, perhaps it should be only for extremely narrow purposes.  

Speech, meet your consequence

Finally, the need to “punch upwards” is both understandable and lawful. But it should be done with great care, and with the long view in mind. It’s a lesson I learned from my mother who used to be the leader of all the public-school teachers in Manila. Senator Risa Hontiveros’ statement appeals for the right balance by not just asking for “self-reflection, compassion and healing for both the religious and LGBTQIA+ communities.” Rather, she potently reminds that: “Our platforms should build bridges.” Advocates need to weigh if the path to greater societal acceptance is best served by poking the bear through targeting what it holds quite dear.

Once the video went viral, it was inevitable for some of us to react the way we did. This is natural. If one intentionally provokes, then one must deal with the reaction. Speech, meet your consequence. We, the majority, however, should be mindful about flexing our political might and getting official state actors involved.

The path to co-existence doesn’t lie in revenge and legal persecution.

The fallout from the incident requires introspection. Not calls to arm. Our country is besieged by a storm of disinformation. We need to maintain spaces that are safe from algorithmic manipulation and prevent operators from using incidents like these to fan societal divisions. We all lose if they drive us further away from each other. Escalation will only hold all of us back. – Rappler.com

John Molo practices litigation and arbitration. He has argued several cases before the Supreme Court. He is chairperson of UP Law’s Political Law Faculty Cluster, a trustee of the Philippine Bar Association, and the chairperson of the Board of Editors of the IBP Law Journal.

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