Stan's notebook

Favorite passage from “Gilead” by Marilynne Robinson

‘How could he possibly leave now!’ she says. That’s a fair question, I suppose, but I think I know the answer to it. The house will fill up with those estimable people and their husbands and wives and their pretty children. How could he [the wayward son] be there in the midst of it all with that sad and splendid treasure in his heart? …

I can tell you this, that if I’d married some rosy dame and she had given me ten children and they had each given me ten grandchildren, I’d leave them all, on Christmas Eve, on the coldest night of the world, and walk a thousand miles just for the sight of your face, your mother’s face. And if I never found you, my comfort would be in that hope, my lonely and singular hope, which could not exist in the whole of Creation except in my heart and in the heart of the Lord. That is just a way of saying I could never thank God sufficiently for the splendor He has hidden from the world – your mother excepted, of course – and revealed to me in your sweetly ordinary face. Those kind Boughton brothers and sisters would be ashamed of the wealth of their lives beside the seeming poverty of Jack’s life, and he would utterly and bitterly prefer what he had lost to everything they had. That is not a tolerable state of mind to be in, as I am well aware.

And old Boughton, if he could stand up out of his chair, out of his decrepitude and crankiness and sorrow and limitation, would abandon all those handsome children of his, mild and confident as they are, and follow after that one son whom he has never known, whom he has favored as one does a wound, and he would protect him as a father cannot, defend him with a strength he does not have, sustain him with a bounty beyond any resource he could ever dream of having. If Boughton could be himself, he would utterly pardon every transgression, past, present, and to come, whether or not it was a transgression in fact or his to pardon. He would be that extravagant. That is a thing I would love to see.

As I have told you, I myself was the good son, so to speak, the one who never left his father’s house – even when his father did, a fact which surely puts my credentials beyond all challenge. I am one of those righteous for whom the rejoicing in heaven will be comparatively restrained. And that’s all right. There is no justice in love, no proportion in it, and there need not be, because in any specific instance it is only a glimpse or parable of an embracing, incomprehensible reality. It makes no sense at all because it is the eternal breaking in on the temporal. So how could it subordinate itself to cause or consequence? …

… Augustine says the Lord loves each of us as an only child, and that has to be true. ‘He will wipe the tears from all faces.’ It takes nothing from the loveliness of the verse to say that is exactly what will be required.

The world (or God) cannot be other than what it is. So that means some higher law must have designated that fact.

The best time to change a constitution of a country cannot be asked by the forecasting mindset. It can only be asked in retrospect. The fact that the constitution was even rewritten at all means that all forces of society rendered it ripe for revision. Constitution-making is an absolute social experiment. If the sovereign will of the people says, “It shall be the policy of this state to eat shit” and orders everyone to perform what people do in the film “Salo”, you really have to eat shit and there is no higher moral imperative to strike down the paramount law. (Well, the intent of the framers of the constitution is mainly guided by natural law, but then our adherence to natural law is largely a function of our rationality, and rationality in turn depends for the most part on what the average mind thinks rationality is).

We may need to revise our Marxist view of class struggle in Philippine electoral politics in that it is not really about the elite against the working class, but the elite against the elite, about oligarchic families engaged in a dialectic process of power struggle. In this sense, our political salvation is in establishing a single class of elites securing their legitimacy through hegemonic rule. Democracy, after all, excludes dictatorship, but not hegemony.

People with no petty vices (alcohol, cigarettes, gambling, illegal drugs, illicit sex) — in fact, those who practice yoga, quote the bible, count their calories, or those who have extraordinary self-discipline in general — upon ascension to power, are revealed to be psychopaths and monomaniacs all along, and they’re out to bring hell on earth with no empathy.

The case of “Kulô”: A compelling state interest to regulate art exhibits?

(via Interlineal)

A rigorous analysis of a social issue can only begin by trimming down unnecessarily complex assumptions of what is relevant in a case. I hold (1) that “artistic merit” should be rejected as a standard of judgment in the controversy involving Mideo Cruz’s Poleteismo; (2) that the standard of “offensiveness” should not be a ground for suppressing the art exhibit “Kulô”; and (3) that there must be another standard we can use without subjecting the “content” of the artwork to strict scrutiny.

The choice of a standard depends wholly on the framing of a question. And because the question can plausibly alter State policy, it is essential that the issue before us must first and foremost be framed as a constitutional question.*

Our State is naturally concerned with the delicate balancing of liberty and restraint. As a matter of policy, our Constitution and the law of precedent in our courts guarantee that “liberty is the rule and restraint the exception” (Morfe v. Mutuc). Because it is in the nature of an exception to be subjected to conditions, the authority imposing restraint has the burden of justifying the existence of that restraint. But it is not true that the presumption of liberty is unqualified. In the same landmark case cited above which questions the validity of the exercise of police power of the State, liberty is defined as “the absence of arbitrary restraint[,] not immunity from reasonable regulations and prohibitions”.

Any policy suppressing the art exhibit must then be subjected to an arbitrariness test. The question to ask from the authority imposing the restraint is whether its action is a capricious exercise of judgment. This must be analyzed in conjunction with the Constitutional guarantee of free speech, the artwork being itself a form of speech.

Let us qualify this standard by stating that, as of this writing, the government has not formally exercised its police power in the form of a statute curtailing artists’ freedom of expression. Let us note, however, that the Cultural Center of the Philippines (CCP) was recently subjected to legislative inquiry. The Congress, which decides on the allocation of public funds, can as a matter of policy use this information in the approval of appropriation bills. There is also nothing to prevent subsequent legislation from enacting a law curtailing some privileges presently enjoyed by local art institutions. The fact is that the threat of suppression from the State is merely imminent.

Meanwhile, the acts of militant citizens’ groups have apparently imposed more pressure on CCP to close the exhibit. And it is precisely the environmental circumstances surrounding the art exhibit (the cry of outrage from the Church and other interest groups, including the opinions of public officials reported by media) that now provoke the enactment of a national policy—such as, but not limited to, the regulation of art exhibits in State-funded galleries, subject to conditions prescribed by the the government. It is prudent now to contemplate on the policy question, “Should the art exhibit be suppressed?” because whatever will be the response of the State will be binding to the degree of liberty of other artists and institutions of art going forward. It is therefore imperative that standards of judgment must be set in order.

One of the most popular standards circulating in public discussion is “artistic merit”. The logic is that if Mideo Cruz’s Poleteismo is established as art, then it must not be suppressed, it being a legitimate art object in a gallery sanctioned by no other than what is supposed to be the highest authority in the promotion of national art. This standard is not only a poor measure of assessing a national policy, but it is also dangerous. In the first place, it fails the test of verifiability, i.e. we cannot imagine a positive, actual and identifiable fact or condition in which we can say with finality that a content is not an art. “Artistic merit” is not a prudent measure in calibrating degrees of liberty and restraint for artists in particular and individuals in general. More importantly, this standard is also dangerous because it may in fact be prejudicial to the claim that art, as a form of speech or expression, is protected. The application of the standard of “artistic merit” per se in determining policy is already a threat to free speech because it provokes the regulation of the “content” of an expression. I deem it superfluous for the public to enter a discourse on art theory at this point because it is sufficient to restrict the discussion within an ordinary free speech analysis. Marrying art theory and national policy-formulation will, I believe, boomerang against those institutions which utilize this type of discourse to defend the freedom of expression. The fact is that art theory can just as easily be usurped by the State to justify the curtailment of basic rights. Once we analyze the issue on a “content”-based standard, it will open a can of worms in the regulation of the content of speeches. Such regulation inevitably leaves an immense room for unfettered discretion in regulating artistic content.

Nor should we adopt “offensiveness” as a ground for suppressing the exhibit. In the first place, it is a standard as prone to arbitrary discretionary measures as “artistic merit”. But more importantly, it violates equal treatment of other offenses which thus far are tolerated by State policy. In the opinion of Catholics, the conjunction of the phallus and the image of Christ has a quality of “offensiveness” meriting censorship, but what of the mere anthropomorphic depiction of God in the eyes of other religions which find offense in such representations? The quality of the standard that we want to apply in making a decision about the controversy should be as neutral as possible about “content”, if it can help it.

Indeed, the freedom of expression is not absolute. Here is where constitutional construction and the Catholic Bishops’ Conference of the Philippines (CBCP) and other religious groups expressing their condemnation over the art exhibit all agree, and it is easy to see why they concur just on this particular point: practically nothing in the social world is predicated with the quality of being “absolute”, and hardly anyone in a public position will arrogate upon himself the authority to make an ex cathedra pronouncement of a superlative. The real point of contention is how limitations are construed. The threshold question is: what is the constitutional limit on free speech? And the substantial question is: has the limit been breached so as to merit the exercise of State power in suppressing the speech?

The constitutional limitation of the right to free expression has unfortunately been misconstrued by groups both for and against the suppression of “Kulô”. In construing the limit, they have resorted to standards which may subject the constitutional guarantee of free speech to arbitrary measures, as argued above. But American and Philippine jurisprudence has bestowed us the judicial wisdom that the only limit to free speech, the only justification for its impairment, is one that creates a clear and present danger of a substantive evil that the state has a right to prevent.

The statement that “freedom is not absolute” is not a magical incantation that the CBCP can use any time it wishes an offensive speech to be curtailed. The curtailment must be in the view of preventing a “substantive evil” that harms public order, public safety, public convenience, public morals, public health, or any other legitimate public interest.

Such standard must exist to avoid the unfettered discretion of any State instrumentality in regulating speech. May it be argued that there is a “substantive evil” harming a legitimate public interest? The howl of protests from various sectors, however, does not constitute such an evil, nor do the acts of vandalism, threat of arson and any offensive measures by militant citizens’ groups against CCP—for these are merely directed to that particular exhibit and artist. The substantive evil which the impairment attempts to remedy must be “extremely serious and the degree of imminence extremely high”. It must be equivalent to the danger created by a person shouting fire in a crowded theater. In the absence of the showing of a clear and present danger, the doubt must be resolved in favor of free speech.

It is true that the “clear and present danger” test, exacting as it may be, is not “a sovereign remedy for all free speech problems” (Gamboa Jr. v. Aguirre Jr.), and that there may be other less exacting standards we can adopt. All the same, these are ultimately sanctioned by the fundamental law of the land, and what we cannot dispute is that the limitation on free speech is not a broad standard as the CBCP and other public interest groups would have themselves believe.

While free speech is not a license to express “vulgar and despicable” utterances, it is nevertheless a guarantee that the State will not suppress our language and ideas, no matter how offensive to majoritarian sensibilities and good taste, and provided we do not provoke imminent lawless action. The State must take away the fear of being suppressed so that free speech may truly be free. The evil that the free speech clause tries to remedy is not only censorship, but the adverse effect of the fear of censorship on democratic processes—that an utterance is prevented even before it is said, because there can simply be no democracy in a country where citizens are constantly tiptoeing on expressions out of fear of subverting the awesome power of the State.

* This is precipitated by a brief discussion of Dean Raul C. Pangalangan’s article, “‘Freedom for the thought we hate’”, published in Philippine Daily Inquirer, in a class on Legal Method in the UP College of Law.

—Russell Stanley Geronimo