Freedom of Artistic Expression:

Examining Blasphemous Artworks in Public Museums

Ma. Vanessa Hernandez
Mary Grace Rementina
Far Eastern University Institute of Law
JD4103

I. INTRODUCTION
In the Philippines, freedom of expression is one of the fundamental postulates of our constitutional
system. It is only when the people have unbridled access to information and the press that they will be
capable of rendering enlightened judgments.1 Jurisprudence proves that freedom expression is indeed
essential and not to be curtailed except for a very few circumstances. However, there is no specific law
or jurisprudence which tackles the scope and limits of artistic expression.

II. STATEMENT OF THE PROBLEM

Whether or not the three tests of restraints on freedom of speech and expression, i.e., (a) the dangerous
tendency doctrine; (b) the balancing of interests tests; and (c) the clear and present danger rule, are
appropriate and sufficient in examining artworks exhibited in public museums or in other venues
funded by the government.

III. OBJECTIVES
 To clarify the boundaries of freedom of artistic expression in public museums
 To determine whether the tests of restraints of freedom of speech and expression are also
applicable and sufficient in artworks or if not, to propose a test specifically for artworks

IV. SIGNIFICANCE OF THE STUDY

This study, which seeks to examine a particular aspect of the freedom of expression that has never
been actually dealt with, may be a means of developing a better set of guidelines for artistic
expression. Art may be interpreted in so many ways by different people. Understanding the boundaries
of freedom of artistic expression safeguards not only the rights of artists but also of the public who
goes into public museums.

1
Chavez v. Gonzales, 545 SCRA 441 (15 February 2008).
 V. SCOPE AND LIMITATIONS
This study focuses on artworks exhibited in public museums or in other venues funded by the
government. Moreover, the subject or the elements of said artworks shall be related to Christian and
Catholic religion only.
VI. CONCEPTS AND DEFINITIONS
A. Freedom of Expression
“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.”2
Freedom of expression is universally considered as a fundamental right of every person. It is given a
preferred right that stands on a higher level than substantive economic freedom or other liberties.3 Our
history, both political and legal, illustrates that freedom of expression is an indispensable condition for
the exercise of other freedoms.4
The provision on freedom of expression in the 1987 Philippine Constitution was originally
lifted from the First Amendment of the United States Bill of Rights, which was so crafted because the
founders of the American government believed, as a matter of history and experience, that the freedom
to express personal opinions was essential to a free government.5
As discussed in Gonzales v. COMELEC,6 this provision entails the liberty to discuss publicly
and truthfully any matter of public interest without prior restraint and subsequent punishment. It is
essential for the search of truth, for democracy to work properly and for individual self-fulfillment for
it is only when the people have unbridled access to information that they can be able to render
enlightened judgments and participate in social, including political, decision-making.7
Freedom of expression as guaranteed by the Constitution not only protects those who favor an
existing climate of opinion on any matter of public consequence, but also those who question or who
do not conform.8 To be truly meaningful, it shall allow and even encourage the articulation of the
unorthodox view, though it be hostile to or derided by others, or though such view “induces a
condition of unrest, creates dissatisfaction, or even stirs people to anger.”9
In the case of Terminiello v. City of Chicago,10 the US Supreme Court held that a function of
free speech is to invite dispute and it may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

2
1987 Philippine Constitution, Article III, Section 4.
3
Id., Chavez v. Gonzales.
4
Id.
5
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).
6
Gonzales v. COMELEC, 27 SCRA 835 (1969).
7
Id.
8
New York Times Co. v. Sullivan, 376 US 254, 270 (1964).
9
Id.
10
Terminiello v. City of Chicago, 337 US 1, 4 (1949).
That is why freedom of speech, though not absolute, is nevertheless protected against censorship or
punishment, unless shown to exceed the following tests:

1. Clear and present danger

This rule means that the evil consequence of the comment or utterance must be extremely serious and
the degree of imminence extremely high before the utterance can be punished. The danger to be
guarded against is the “substantive evil” sought to be prevented.
In Gonzales v. COMELEC, 11 the Court has adopted the clear and present danger rule in
sustaining the constitutionality of R.A. No. 4880 which prohibited early nomination of candidates and
limited the period of election campaign. Senator Lorenzo Tanada, said that R. A. 4880 is valid under
the clear and present danger test, there being the substantive evil of elections being debased and
degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with
the loss of efficiency in government and of lives of people.
In Iglesia ni Cristo (INC) v. CA, 12 the Court ruled that INC’s television show is a valid
exercise of freedom of expression. The Board of Review gave INC’s program an x-rating for attacking
other religions by showing the latter’s religious ceremonies while INC interprets the Bible. However,
the Court held that such attacks are mere criticisms of some of the deeply held dogmas and tenets of
other religions. There is no showing of the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on speech cannot be justified by
hypothetical fears but only be the showing of a real, substantive and imminent evil.

2. Balancing of interests
When a particular conduct is regulated in the interest of public order and the regulation results in an
indirect abridgment of speech, the courts shall determine which of the two conflicting interests
demands the greater protection under the particular circumstances presented. There is a wide range of
factors which may be relevant in ascertaining the point of equilibrium such as the following:
a. the social values and importance of a specific aspect of a particular freedom restricted;
b. the specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few;
c. the value and importance of public interest sought to be secured by the legislation – the
reference is to the nature and gravity of the evil which the Congress seeks to prevent;
d. whether the specific restriction decreed by Congress is reasonably appropriate and
necessary for the protection of such public interest; and/or

11
Id., Gonzales v. COMELEC.
12
Iglesia ni Cristo (INC) v. CA, 259 SCRA 529 (1996).
 e. whether the necessary safeguarding of the public interest involved may be achieved by
some other measure less restrictive of the protected freedom.13
In AKBAYAN v. Aquino,14 the non-disclosure of diplomatic negotiations of Japan-Philippines
Economic Partnership Agreement to the public was challenged. The Court held that such negotiations,
which are inter-government exchanges prior to the conclusion of executive agreements, are excluded
from the right of information. Disclosing the negotiations could impair the ability of the Philippines to
deal with other governments in the future and also discourage Philippine representatives from frankly
expressing their views during negotiations.
In Lagunzad v. Soto Vda. De Gonzales, 15 Lagunzad produced a movie on the life of the
deceased Moises Padilla. It focused on Moises as a mayoralty candidate but there were some parts that
dealt with his private and family life including the portrayal of his mother, the respondent. While it is
true that most of the depictions of Moises were of public knowledge and occurred at the time that he
was a public figure, the limits of freedom of expression are reached when such expression touches
upon matters of essentially private concern.

3. Dangerous tendency
This rule means that “if the words uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that some definite or immediate acts of
force, violence or unlawfulness be advocated. It is sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of
force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body seeks to prevent.” 16
In People v. Perez,17 the Court held that no matter how severe a criticism is, it is still within
the range of liberty of speech, unless the intent and effect be seditious. Perez made a remark during a
period of great dissatisfaction with Governor General Wood saying, “And the Filipinos, like myself
must use bolos for cutting off Wood’s head for having recommended a bad thing for the Philippines.”
Perez’ remarks are not protected by the constitutional right because such are seditious which could
easily produce dissatisfaction among the people and it is incompatible with a disposition to remain
loyal and obedient to the government. The character of the threatened extermination of Wood was “so
excessive and outrageous.”

13
American Communications Association v. Douds, 339 US 383, 94 L Ed 925, 943 (1947).
14
AKBAYAN v. Aquino, 558 SCRA 468 (2008).
15
Lagunzad v. Soto Vda. De Gonzales, 92 SCRA 476 (1979).
16
Id., Gonzales v. COMELEC.
17
People v. Perez, 45 Phil. 599 (1923).
 Another case citing this rule is Espuelas v. People,18 where the petitioner had his picture taken
making it appear that he was hanging lifeless while suspended from a tree, but in reality, he was
standing on a barrel. He had it published in newspapers with a letter saying that he committed suicide
due to his displeasure with President Roxas and that the government is infested with Hitlers and
Mussolinis. The Court held that Espuelas was guilty of seditious libel because the letter tags the
government as one of the crooks and dishonest persons infested with Nazis and Fascists. There arises a
tendency to produce dissatisfaction with the disposition to remain loyal to the government.

B. What is Art?
In a broad sense, art is skill in making or doing. 19 It is a branch of learning that uses skill and
imagination in the production of things of beauty. 20 Art covers a wide range of disciplines, from
paintings and sculptures to dancing, from theatre to movies, and from fashion to music.
In all cultures and civilizations, people create art for two reasons: first, they want to make
something in a form that is satisfying in a special way for direct experience—something that is worth
looking at; and second, they want to make an object that will remind other people of certain
memorable things.21 The first reason is simply creating something that is literally beautiful while the
second reason emphasizes on making art that conveys a particular message or idea. Works of art are
more than tools that convey certain meanings but they also appeal through their form and design.

C. Public Museums in the Philippines

Museum is an institution where artistic, educational and historical materials are generally exhibited to
the public. Museums are financed by private sectors or government funds or a combination of both.
Public museums in the Philippines are either free of charge or at least charges far less more than
private museums. Some of the well known public museums is the Cultural Center of the Philippines
and the National Museum.
Under R.A. No. 7356,22 culture is a manifestation of the freedom of belief and of expression,
and is a human right to be accorded due respect and allowed to flourish. In line with this, a
government agency is tasked to encourage and ensure the exercise of freedom of expression by
eliminating all forms of censorship inimical to cultural and artistic growth and development without

18
Espuelas v. People, 90 Phil. 524 (1951).
19
The World Book Encyclopedia, 626 (1994).
20
The Merriam-Webster Dictionary (2004).
21
Id., The World Book Encyclopedia.
22
An Act Creating the National Commission for Culture and the Arts, Establishing National Endowment Fund for Culture and the
Arts, and for Other Purposes, Republic Act No. 7356 (1992).
prejudice to the rights of other people to develop and enhance their own culture or a genuinely Filipino
culture.23

VII. EXAMINING BLASPHEMOUS ARTWORKS

A. Blasphemous Artwork in the Philippines
Poleteismo is the title of Mideo Cruz’s artwork featured in ‘Kulo,’ an exhibit recently held in
the Cultural Center of the Philippines. Though ‘Kulo’ had other artworks in display, it was Cruz’ that
stole the show for twisting Catholic icons, most notably, putting male genitals on Jesus Christ’s face
and placing a condom on Virgin Mary. While this artwork can be easily passed off as one’s right to
exercise creativity and freedom of expression in more liberated countries that have no official state
religions, here in the Philippines where most people are Catholics, it’s an entirely different ballgame.24
For what seems like an attack on the Catholic Church, most people can’t embrace Cruz’
Poleteismo despite the positive feedback he received from notable artists and art enthusiasts in other
countries. University of Santo Tomas, a Catholic institution, and Ateneo de Manila University
supported the said artwork. Poleteismo has been exhibited in Ateneo back in 2002.25
Because of its nature, Poleteismo has transcended art and has dragged other matters (the
Constitution, legal implications, obscenity, communication values and ethics, and religion to name a
few) into discussions concerning the controversy surrounding it.
 The Artist’s Side
Here are some excerpts from an interview of Mideo Cruz with Manila Standard26:
“As a visual artist, the images I create contain more explanation than my words. Images
are open to various interpretations on the basis of the viewer’s perspective, maturity, and
imagination. I cannot please everybody. I cannot tell them exactly how they will look and
translate my work but may I say, please don’t stop on the surface; if you will close your
eyes upon seeing the images, there are more things to see. Sometimes we need to realize
that what we are looking at is the mirror of our society and of ourselves. The uproar might
be the unconscious denial of seeing ourselves truthfully in the mirror. The realities in our
society are the real blasphemy of our own image, the blasphemy of our sacred self.”
Aside from being open to various interpretations, CCP Officer Chris Millado said that works
like Poleteismo were meant not only to be appreciated but to also challenge audiences.
Besides, Cruz is simply exercising his freedom of expression.27

23
Id.
24
Poleitismo in CCP: Two Sides of the Coin and the Aftermath, available at http://marloneviardo.blogspot.com/
2011/08/politeismo-in-ccp-two-sides-of-coin-and.html (last accessed 11 Aug 2011)
25
Id.
26
Interview by Jenny Ortuoste with Mideo Cruz, Manila Standard, 04 Aug 2011.
27
Id.
  Criticism and Support
a. Support from other artists
Artists from the United States, Canada, Italy, Germany, Australia and Thailand defended
Cruz and said the campaign of vilification against Cruz was unjust. Interaksyon.com cited
a message from a German artist Jürgen Fritz who said Cruz “created a piece of art, whose
central core was to provoke such reactions from the Church and other institutions. I think
this was successful. I hope that what is coming now will be fruitful for you and the
Filipino art movement.”28
b. Artist should be free to create
Cultural worker, history researcher, author and curator Imelda Cajipe Endaya in her own
essay “Trying to understand why art can offend, and why artists should continue to be
free” said the ongoing controversy however is not about an artwork being prurient or
obscene but more about blasphemy and sacrilege in a largely Catholic populace.29 She
also noted that there are no legal precedents on such matters when it comes to testing the
Constitution and so no discussion on the issue did take place. Endaya said she had told
Cruz himself in a previous forum that she herself was offended by the artwork, but she
didn’t think that the CPP should have closed the exhibit. “Politeismo should have been
left open for restricted viewing, but maybe moved elsewhere on safer grounds of free-
thinking academe,” she said.30
Commenting on how various politicians have started to grandstand using the
controversy for their own ends, Endaya said, Filipinos should look at the positive side of
these ensuing events. “Yes, artists and cultural workers, let’s seize this as an educating
opportunity. This is not just about a controversial artwork, it is about how artists can
continue to freely create and exhibit/publish their work, and how government will
administer, control or neglect art and culture,” she said.
c. Excerpts from Poleteismo is art, not Art31
Inside the set of creative expressions protected by the Constitution is the set of things
exhibited in an art gallery. Everything in an art gallery is art in the generic sense of the
word. But not everything in an art gallery is art in the evaluative sense of the word. There
are many objective criteria for saying that something is art. If there were none, the judges

28
Foreign artists support 'blasphemous' Cruz; CCP urged to reopen exhibit, available at http://www.interaksyon.com/
article/10938/foreign-artists-support--blasphemous-cruz-ccp-urged-to-reopen-exhibit (last accessed 8 Oct 2014).
29
Inna Alleco R. Silverio, Mideo Cruz “Poleteismo” Continues to Stir Debate, available at http://bulatlat.com/
main/2011/08/17/mideo-cruz-poleteismo-continues-to-stir-debate/#sthash.zTC1BEu6.dpuf (last accessed 8 Oct 2014).
30
Id.
31
Isagani M. Cruz, Poleteismo is art, not Art, Philippine Star, 15 September 2011.
 in annual art competitions would never agree on winners, but they often do —
unanimously. The saying that art or taste is purely subjective is simply not true.
One of these objective criteria is the ability of art to ennoble. 32 It is where after
stimulating or provoking or even incensing us, a work of art should make us better
persons. Clearly, “Poleteismo” did not do that, it made us worse persons. Instead of
ennobling some Catholics, “Poleteismo” made them commit one of the deadly sins which
is anger.33
There is provoking and there is provoking. The kind of provoking that Mideo Cruz
did was not justified by the creative piece that he did. Critics always say that an artist
should “earn” the effect of his or her work. That means that there should be a deliberate,
successful effort by the artist to achieve whatever it is she or he wants to achieve. No art
piece can be conceived simply on the spur of the moment. Every art piece that aspires to
be art is always the product of long, careful, profound hard work.34
Therefore, based on the reception of the work, “Poleteismo” flunked the test of good
art. It may be art, but it is bad art. It may be art, but it is not Art.35

B. Blasphemous Artworks in Other Countries

1. Piss Christ by Andres Serrano
This artwork is a photograph of a crucifix submerged in a glass of the artist’s urine. It was
first exhibited in New York and was favorably received. The artwork won the
Southeastern Center for Contemporary Art’s “Awards in the Visual Arts” competition
which was sponsored by the tax-payer funded US government agency, the National
Endowment for the Arts. It was also exhibited in a public museum in Australia.
 The Artist’s Side
“The thing about the crucifix itself is that we treat it almost like a fashion accessory.
When you see it, you're not horrified by it at all, but what it represents is the
crucifixion of a man,” Serrano said.36 “And for Christ to have been crucified and laid
on the cross for three days where he not only bled to death, he shat himself and he
peed himself to death. So if Piss Christ upsets you, maybe it's a good thing to think
about what happened on the cross.”37

32
Id.
33
Id.
34
Id.
35
Id.
36
Amanda Holpuch, Andres Serrano’s Controversial Piss Christ goes on view in New York, available at
http://www.theguardian.com/artanddesign/2012/sep/28/andres-serrano-piss-christ-new-york (last accessed 9 Oct 2014).
37
Id.
 Serrano also added, “the crucifix is a symbol that has lost its true meaning;
the horror of what occurred. It represents the crucifixion of a man who was tortured,
humiliated and left to die on a cross for several hours. In that time, Christ not only
bled to dead, he probably saw all his bodily functions and fluids come out of him. So
if "Piss Christ" upsets people, maybe this is so because it is bringing the symbol closer
to its original meaning. There was a time prior to the 17th century when the only
important art, the only art that mattered, was religious art. After that, there were very
few contemporary art pieces that were considered both art and religious, and "Piss
Christ" is one of them.”38
 Criticisms and Support
Many people were offended by the artwork of Serrano, saying that it is not only
offensive to Christians but blasphemous as well.39 Opponents of Serrano’s work do
not see it as art, but as a disrespectful display of Christian symbols and values.
“Ethically speaking, what was at issue was not simply offensiveness but ‘blasphemy,’
the quite different wrong of speaking against God or the Sacred, or ridiculing things
consecrated to God or held sacred.”40 This then brings into question the freedom of
expression in the United States as a whole. Just because something upsets a certain
group of people, can it be stopped? This was attempted when Serrano was showing
his art at a museum: a man tried to bring a case to the courts in the hopes of getting
Serrano banned from the exhibit. This did not work, and eventually a group of
teenagers destroyed the photo with hammers. This led to even more controversy
centered on the artwork.
Richard Posner, a US judge, frowns upon trying to limit art legally. Posner is
very realistic, in his article “Art for Law’s Sake” he brings up such points as not being
able to make everyone happy with any decision, the inability to determine a work of
art’s value or offensiveness, and the struggle in the legal system with differing
personal opinions.
While Serrano is widely accepted in the art world, it is somewhat shocking
that he has supporters in the Christian faith as well. Many, like Jerry Meyer who
writes for the Journal of the American Academy of Religion, recognize Andres’s
attempt to show the mix of Jesus as human and divine by using natural bodily

38
Udoka Okafor, Exclusive Interview with Andres Serrano, Photographer of Piss Christ, available at
http://www.huffingtonpost.com/udoka-okafor/exclusive-interview-with-_18_b_5442141.html (last accessed 9 Oct 2014).
39
Benjamin Sutton, A Brief History of Piss Christ, available at http://blogs.artinfo.com/artintheair/2013/12/25/a-brief-history-of-
piss-christ/ (last accessed 9 Oct 2014).
40
Damien Casey, Sacrifice, Piss Christ, and Liberal Excess: The Rebuttal, available at
http://www.artsandopinion.com/2004_v3_n3/pisschrist.htm (last accessed 9 Oct 2014).
 fluids. While an initial reaction to urine is repulsion, it is a natural thing and, not to
steal a line from a children’s book, but everybody pees. Why should Jesus Christ
always be shown in a very pure, clean way when becoming human like everyone else
is a very messy ordeal? While maintaining the importance of body and blood in such
things as the Eucharist, the Church has steadily moved away from viewing Jesus
Christ as a man and instead prefers to view him as a purely divine creature.41
This country supposedly has freedom of speech, which due to expression
contains the outlet of art. It can be considered blasphemous, but just because it is
offensive to a certain group of people does not make it blasphemous to all. People
may criticize, or even refuse to acknowledge Andres’s piece as art, but Serrano’s
work will continue to stick around. Through criticism people may forget that Serrano
is a Catholic, and the crucifix is a sacred symbol to him as well as his opponents. He
just chooses to express himself in a different way.42

2. The Misadventures of the Romantic Cannibals by Enrique Chagoya

 The Artist’s Side
The artist said he was simply making a statement on problems he sees with religious
institutions. “My intention is to critique religious institutions, since they affect
everybody's lives,” Chagoya said.43 He also added how these religious groups affects
individuals and cultures in imposing its credo including their position against same-
sex marriage while allowing pedophiles to exist within its ranks for decades and
keeping it quiet.44 “My work is about the corruption of the spiritual by the institutions
behind it, not about the beliefs of anyone. I respect people's opinions and I hope they
respect mine,” Chagoya said.
When asked about the vandalism of his artwork Chagoya said: “Should we as
artists, or any free-thinking people, have to be subjected to fear of violent attacks for
expressing our sincere concerns? I made a collage with a comic book and an
illustration of a religious icon to express the corruption of something precious and
spiritual … There is no nudity, or genitals, or explicit sexual contact shown in the
image. There is a dressed woman, a religious icon’s head, a man showing his tongue,
and a skull of a Pope in the upper right corner of the controversial page. I did not

41
Jesus in History and Culture, Discussion on Piss Christ, available at http://bcjesus.weebly.com/jesusart-ii.html (last accessed 9
Oct 2014).
42
Id.
43
Diane Macedo, Art Exhibit Depicting Jesus In a Sex Acts Sparks Outrage in Colorado, available at
http://www.foxnews.com/us/2010/10/04/outrage-art-exhibit-depicting-jesus-sex-act-boosts-gallery-visits/ (last accessed 9 Oct 2014).
44
Id.
 make a picture of Christ. I used symbols as one would use words in a sentence to
critique corruption of the sacred by religious institutions.”45
 Criticisms and Support
Chagoya’s work provoked accusations that it was obscene and blasphemous when it
was displayed at the Loveland Museum. Although Chagoya denied that the collage of
pornography and religious symbols depicted Jesus in a sex act, local Christian leaders
denounced it.46
Art is not always beautiful. Art sometimes depicts the darker side of humanity
and disturbs. We have our limits, and this definitely crosses those limits, but none-the-
less, “The Misadventures of the Romantic Cannibal” is an art. It is an expression that
definitely deliberately attempts to affect the senses in a way that makes you feel,
question, and wonder. All be it, we may be feeling disgusted, we may be questing
why the artist is so offensive to Christians, and we may wondering what this artist was
thinking when he created the piece. But, art does that. In many ways, this piece
depicts how the artist sees the world and captures his perception of what he thinks is
the reality in which the world exists. Maybe the greatest part of this art is not the art
itself but the reaction it has created.47

3. Holier Than Thou by Jerry Boyle

Washburn University is a municipal university in Kansas, funded by city and county
taxes. Each year, the university sponsors an outdoor sculpture contest and one of the
selected artworks was Holier Than Thou which depicts a Roman Catholic Bishop with a
contorted facial expression and a miter that some have interpreted as a stylized
representation of a phallus. Some Washburn professors and students filed a lawsuit
against the university, demanding the removal of the artwork but the court ruled that the
state is not prohibited from displaying art that may contain religious or anti-religious
symbols in a museum setting and in the context of the other artworks, Holier Than Thou
was part of a “typical museum setting” that, “though not neutralizing the religious content
of a religious work of art, negates any message of endorsement of that content.”

45
Hrag Vartanian, Artwork attacked in Colorado Museum, available at http://hyperallergic.com/10380/art-attacked-in-colorado-
museum/ (9 Oct 2014).
46
Artist in blasphemy controversy offers to paint new religious work, available at http://www.ewtnnews.com/catholic-
news/US.php?id=1913 (last accessed 9 Oct 2014).
47
Fred Pirone, A Review on Chagoya’s “The Misadventures of the Romantic Cannibals” available at
http://www.fredpironeart.com/?p=658 (last accessed 9 Oct 2014).
  The Artist’s Side
The artwork depicts the upper body of a heavyset man with a contorted face, wearing
an ecclesiastical cap known as a miter. Boyle said he was glad his work was attracting
attention. “For a piece of art, if people want to laugh with it, laugh at it or spit on it,
that's OK. I just don't like them to walk by it.” Boyle said he created the sculpture as a
“humorous piece that was not intended to be mean-spirited,” and that he hoped people
would form their own opinions about its meaning.48 “Art's subjective, that's why it
makes the world go around. Everybody sees something different,” he said.49
 Criticisms and Support
Some critics contend the ceremonial hat worn by the clergyman in Jerry Boyle’s
“Holier than Thou” resembles a phallus. Also, the lawsuit, filed by a professor and
student, criticizes the artwork for giving the clergyman a “grotesque” facial
expression. Their lawsuit suit argued the sculpture is anti-Catholic and represents an
official expression of hostility toward their faith, violating their constitutional right to
religious freedom.50
There are those in the Washburn University community and Topeka who are
outraged by the bust as insult to the sacrament, priests, and Catholicism, and want it
removed. Most of those outraged are Catholics, though many other Catholics prefer
that Holier remains at Washburn – one, identified only as “Joan L,” went so far as to
affirm that “…she was not offended nor disenfranchised by the work. She does not
believe it is disrespectful but rather, it serves as a catalyst for discussion and an
opportunity to increase understanding of different religions, beliefs and cultures. She
stated Topeka needed such an opportunity when confronted with the hatred which is
evident on the streets daily.” 51
Most of those who supported the display contented themselves with more or
less agreeing with Washburn’s official statement: “The sculpture was not selected nor
placed to make a political statement but rather as a work of the creative arts. We
regret that some have taken offense, but universities must continue to be venues for
the free exchange of ideas.”52

48
Catholics Outraged, available at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address
=104x467833 (last accessed 9 Oct 2014).
49
Anthony S. Bush, Sculpture of Cleric called “Catholic Bashing” available at http://www.freerepublic.com/focus/f-
news/1037349/replies?c=6 (last accessed 9 Oct 2014).
50
Kan Topeka, Sculpture inspires discussion, Lawsuit at Kansas College, available at
http://www.firstamendmentcenter.org/sculpture-inspires-discussion-lawsuit-at-kansas-college (last accessed 9 Oct 2014).
51
Terry Graves, Washburn’s Bust of a Statue, available at http://www.intellectualconservative.com/article3259.html (last
accessed 9 Oct 2014).
52
Statue Law Suit, available at http://www.wibw.com/home/headlines/570552.html (last accessed 10 Oct 2014).
 Despite its use of the royal, Washburn professor Thomas O'Connor and
student Andrew Strobl were not swayed by the official statement and have filed suit in
federal district court, saying that Holier Than Thou “mocks their deeply held religious
beliefs and ‘conveys the impermissible, state-sponsored message of disapproval of
Catholicism.” They also argued that the display of the statue sends a ‘clear message’
that they are "outsiders" of the school community. Such a message, O'Connor and
Strobl argue, impinges upon their First Amendment right to be free from state-
sponsored hostility to their religion.53

C. International Laws on Freedom of Artistic Expression

1. Universal Declaration of Human Rights
 Article 19. Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.54
Freedom of expression is a cornerstone of democratic rights and freedoms. In
its very first session in 1946, before any human rights declarations or treaties had been
adopted, the UN General Assembly adopted resolution 59(I) stating "Freedom of
information is a fundamental human right and ... the touchstone of all the freedoms to
which the United Nations is consecrated."
The right to freedom of expression upholds the rights of all to express their
views and opinions freely. It is essentially a right which should be promoted to the
maximum extent possible given its critical role in democracy and public participation
in political life. There may be certain extreme forms of expression which need to be
curtailed for the protection of other human rights. Limiting freedom of expression in
such situations is always a fine balancing act.55
 Article 27. (1) Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the
author.56

53
Terry Graves, Washburn’s Bust of a Statue, available at http://www.intellectualconservative.com/article3259.html (last
accessed 9 Oct 2014).
54
Universal Declaration of Human Rights, available at http://www.un.org/en/documents/udhr/#atop (last accessed 11 Oct 2014).
55
Freedom of Expression, available at http://www.hrea.org/index.php?base_id=147 (last accessed 11 Oct 2014).
56
Universal Declaration of Human Rights.
 The right to culture in human rights law is essentially about the celebration
and protection of humankind’s creativity and traditions. The right of an individual to
enjoy culture and to advance culture and science without interference from the state is
a human right. Under international human rights law governments also have an
obligation to promote and conserve cultural activities and artifacts, particularly those
of universal value. Culture is overwhelmingly applauded as positive in the vast
majority of human rights instruments. 57
The term “culture” is not clearly defined in human rights law. Dictionary
definitions states that culture is “the total range of activities and ideas of a group of
people with shared traditions which are transmitted and reinforced by members of a
group” or “the artistic and social pursuits, expression, and tastes valued by a society
or class, as in the arts, manners, dress etc.”58 The protection of culture in human rights
law encompasses two concepts. Firstly, the right of peoples to practice and continue
shared traditions and activities. Secondly, the protection of culture in international law
covers the scientific, literary and artistic pursuits of society.

2. International Covenant on Economic, Social and Cultural Rights

 Art. 15 (1) The States Parties to the present Covenant recognize the right of
everyone:

i. To take part in cultural life;

ii. To enjoy the benefits of scientific progress and its applications;
iii. To benefit from the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author. 

(2) The steps to be taken by the States Parties to the present Covenant to achieve the
full realization of this right shall include those necessary for the conservation, the
development and the diffusion of science and culture.
(3) The States Parties to the present Covenant undertake to respect the freedom
indispensable for scientific research and creative activity.

(4) The States Parties to the present Covenant recognize the benefits to be derived
from the encouragement and development of international contacts and co-operation
in the scientific and cultural fields.59

57
Right to Culture, available at http://www.hrea.org/index.php?base_id=157 (last accessed 11 Oct 2014).
58
V.N. Viswanathan, Human Rights: the 21st Century Challenges, 161 (last accessed 11 Oct 2014).
59
International Covenant on Economic, Social and Cultural Rights, January 3 1976 (last accessed 11 Oct 2014).
 The right to creative freedom is implicit in the right to take part in cultural life
under Article 15 (1) (a). The obligation of states in this regard are reinforced by
Article 15 (2), which provides that states shall take steps necessary for the
conservation, the development., and the diffusion of culture and more explicitly by
Article 15 (3) , under which states ‘ undertake to reinforce the freedom indispensable
for.. creative activity’60
This element of the right clearly overlaps, to a large extent, with the right to
freedom of expression, as protected in a range of international instrument. As with the
right to freedom of expression, there are two aspects to this element of the right to
take part in cultural life: the right to create and the right to have access to the cultural
creations of others.61
According to General Comment No. 21, the obligation to respect the right to
take part in cultural life includes the adoption of specific measures aimed at achieving
respect for the right of everyone, individually or in association with others or within a
community.62
(a) To enjoy freedom of opinion, freedom of expression in the language or
languages of their choice, and the right to seek, receive and impart
information and ideas of all kinds and forms including art forms,
regardless of frontiers of any kind.63
This implies the right of all persons to have access to, and to participate in,
varied information exchanges, and to have access to cultural goods and
services, understood as vectors of identity, values and meaning.64
(b) To enjoy the freedom to create, individually, in association with others, or
within a community or group, which implies that States Parties must
abolish censorship of cultural activities in the arts and other forms of
expression.65
This obligation is closely related to the duty of States Parties ‘to respect
freedom indispensable for scientific research and creative activity.’66

3. The First Amendment of the US Constitution

60
Id.
61
Ben Saul, et al., The International Covenant on Economic, Social and Cultural Rights, 1192, (2014).
62
Federico Lenzerini, The Culturalization of Human Rights Law, 158, (2014).
63
Annamari Laaksonen, Making Culture Accessible, 179, (2010)
64
Id.
65
Id.
66
Id.
 Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of grievances.67
The First Amendment of the US Constitution protects the right to freedom of religion
and freedom of expression from government interference. Freedom of expression consists of
the rights to freedom of speech, press, assembly and to petition the government for a redress
of grievances, and the implied rights of association and belief. The First Amendment has been
interpreted by the Court as applying to the entire federal government even though it is only
expressly applicable to Congress. Furthermore, the Court has interpreted, the due process
clause of the Fourteenth Amendment as protecting the rights in the First Amendment from
interference by state governments.
Two clauses in the First Amendment guarantee freedom of religion.
The establishment clause prohibits the government from passing legislation to establish an
official religion or preferring one religion over another. It enforces the "separation of church
and state." Some governmental activity related to religion has been declared constitutional by
the Supreme Court. For example, providing bus transportation for parochial school students
and the enforcement of "blue laws" is not prohibited. The free exercise clause prohibits the
government, in most instances, from interfering with a person's practice of their religion.68

VIII. ANALYSIS
Freedom of expression is constitutionally protected from any prior restraint or subsequent punishment.
Jurisprudence provides several cases on violation of this freedom, more particularly on freedom of
speech and expression in television, radio and public places. However, freedom of expression in the
form of artwork such as paintings, sculptures and photographs have not yet been a subject to any legal
discourse.
The three tests, i.e., (a) the dangerous tendency doctrine; (b) the balancing of interests tests;
and (c) the clear and present danger rule, have been used in determining the limitations on freedom of
speech and expression in general. Art may be construed in different ways by the viewers. Some factors
that can affect the interpretation of an artwork is the artist’s interpretation, the location, the subject and
the status quo. However, unlike words and actions, it is difficult to determine the message or idea
behind a particular artwork. There are no guidelines or standard in defining a particular work.
Therefore it becomes more difficult to determine if an artwork exceeds the limitations, most especially
if prior restraint is imposed.
67
The US Constitution, The First Amendment, available at http://www.firstamendmentcenter.org/about-the-first-amendment (last
accessed 11 Oct 2014).
68
First Amendment: An Overview, available at http://www.law.cornell.edu/wex/first_amendment (last accessed 11 Oct 2014).
 Poleteismo by Mideo Cruz was the subject of a recent controversy between artists and art
enthusiasts, and the members of Catholic church. Images of condoms and male genitals were
displayed side by side with religious icons such as Jesus Christ and the Virgin Mary. However, the
artwork is not all about those things, there were also images of politicians as well as celebrities
included.
The decision of the CCP officials and the government to close down the exhibit is a
restraint on the freedom of artistic expression of the artists. We believe that Poleteismo did not exceed
any of the limitations as there is no substantive evil that is directly connected with the exhibition of the
artwork. The artwork cannot be immediately interpreted as to provoke violence or any evil that is
sought to be prevented by the government.
Among the three tests, the most appropriate in determining the validity of the exhibition could
be the balancing of interests test. In this case, the freedom of artistic expression of Mideo Cruz and the
freedom of religion of the Catholic church. Both rights are protected by our Constitution. The
government cannot simply decide on the validity of the exhibition because of the public clamor for its
closure. There must be an unequivocal determination that the artwork brings about a substantive evil
that the government seeks to prevent.
As ruled in Iglesia ni Cristo (INC) v. CA,69 mere criticisms against another religion are valid
exercise of freedom of expression. As long as there is no showing of the type, gravity and imminence
of harm that such acts will bring about, restraint cannot be justified. As in the case of artworks, while
we have already established that art can be interpreted in many ways, it is difficult to prove whether it
exceeds the tests. To curtail the exhibition of blasphemous artworks is to curtail the ability of people
to engage in discussions. If continuously repeated, a chilling effect on freedom of artistic expression is
inevitable. Instead of expressing themselves freely, artists like Mideo Cruz, will then opt to portray the
conventional; to stay at the forefront of what is normal and blasé and passé, instead of challenging
the limits of artistic and intellectual possibilities.
Moreover, in a venue where art is celebrated, public museums are the most appropriate venues
for artistic expression to thrive. Even the views of people who are against the status quo are protected
by the constitutional right. For a democratic government to work properly, it is right to allow different
views of people to be heard and also to engage discourse among the public. The burden of proving its
invalidity is placed on the government. If the artists were prohibited from creating works that can
cause controversies, then the idea of a democratic system is rendered a mockery.

IX. CONCLUSION

69
Id. Iglesia ni Cristo (INC) v. CA.
Freedom of speech and expression is guaranteed not only by the Philippine Constitution but also by
international laws. Artistic expression falls under the freedom of expression, however not much
jurisprudence focused on such subject. In this study, we have examined artworks exhibited in public
museums and in other public venues that were labeled as blasphemous by Catholics.
Despite the tests used for speech and expression in our case laws, however, it is unclear
whether such tests are also appropriate and sufficient for artistic expression. From our analysis, we can
conclude that artworks cannot be subjected to any prior restraint unless a substantive evil may be
caused or provoked such as artworks that may incite sedition during a period of unrest. Without the
evil sought to be prevented, the government cannot validly prohibit the exhibition of an artwork. Mere
speculations of the exhibition’s possible effect is not enough, there must be a clear showing of the
gravity and imminence of evil.