10 May 2015

Be Worried, Be Very Worried

Prasertsri Kosin

The brouhaha over the not-so-anonymous posting of Prasertsri Kosin (known online as Koko) on the internet making highly offensive and derogatory remarks about Filipinos should leave anyone who believes in creativity or the freedom of expression worried.

As has been reported, the Bureau of Immigration has commenced an investigation into whether Kosin should be deported from the country. I believe the inquiry is being characterized as whether he has broken any laws for which deportation is warranted. In theory, deportation is warranted against an alien when the alien has violated immigration laws. And there are some broad categories upon which an alien may be deported:

1. The alien entered the country with false or misleading statements or entered without inspection and admission by the Bureau.
2. The alien was not lawfully admissible to the country at the time of entry.
3. The alien is convicted by a Philippine court for a term of one year or more involving moral turpitude.
4. The alien is convicted and sentenced for violating drug laws.
5. The alien is a prostitute or connected with prostitution.
6. The alien becomes a public charge for reasons existing after entry.
7. The alien has violated the limitations/conditions of his non-immigrant admission.

8. The alien advocates, advises or teaches the overthrow by force and violence of the Government of the Philippines, is an anarchist, who advises, advocates or teaches the unlawful destruction of property, or who is connected with any organization that entertains or advocates the above positions.
9. The alien violates or evades immigration laws or assists another in violating or evading immigration laws.
10. The alien violate the alien registration act. 
11. The alien engages in profiteering, hoarding, or black marketing irrespective of whether criminal charges are brought.
12. The alien is convicted of an offense prohibited by the naturalization law.
13. The alien defrauds his creditors by absconding or alienating property to avoid court process.

As you can see, offending people through the use of national caricature is not on this list. And why would it be? With the exception of No. 8, each of these justifications for deportation do not reach the expression of an alien but rather conduct that is already unlawful or that seeks to deter avoidance or evasion of immigration laws. In fact, general commission of crime is not a grounds for deportation under C.A. No. 613, "The Philippine Immigration Act of 1940". Only crimes involving moral turpitude that obtain a sentence of one year or more of confinement are grounds for removal and deportation.

Nevertheless, the Bureau of Immigration through custom has seemingly acquired an unwritten power to deem an alien undesirable and to remove and deport them. There are no standards for what constitutes undesirability -- with the consequence being that the bureau has unfettered power to decide which aliens can remain in the country.

So as the written law does not allow for the Bureau of Immigration to remove and deport this individual, perhaps we should ask ourselves, should the Bureau have the power to do this? (This will just side-step important policy questions such as: Should the Bureau of Immigration be spending its limited resources on policing Facebook and the internet generally instead of preventing convicted criminals and fugitives from entering and living openly in the country?)

Philippine caselaw is replete with cases of the U.S. colonial government persecuting individuals for criticizing government officials. Consider cases like People v. Perez, 45 Phil. 599 (1938) where when faced with a clear confrontation with the right of free speech, the Philippine Supreme Court took it upon itself to find a different crime upon which the justify the conviction.

There are a whole series of recent attempts to chill or stifle the freedom of expression in this country. The government, in cooperation with the Catholic Bishops, persecuting Carlos Celdran's protest for the RH bill under an medieval "offending religious sensibilities" crime. Journalists are routinely harassed and subjected to defamation suits. This wholly fascist piece of law was extended recently in the so-called Cybercrime Prevention Act of 2012 extending defamation to a twelve year jail sentence if done online. It was subsequently upheld by the Supreme Court. The martial law era MTRCB still exists and continues to act as government censor of movies and television.

If the constitutional protection of freedom of expression means anything, it means that objective legal tests must be used by the courts to strike down government action that infringes on this fundamental human right. It also means that the courts may not allow themselves to further unconstitutional actions by the government.

Content Based Regulation

When the government seeks to regulate expression based upon its content (the communicative impact of the expression), it must have a compelling government interest and the means of regulating the expression must be necessary and narrowly tailored to meet the compelling interest and no more. For example, it is said that society has a compelling interest in protecting children from exploitation by child pornography. Prohibiting production or possession of child pornography is a narrowly tailored method of addressing the compelling interest of preventing exploitation by child pornography. Prohibiting production or possession of all pornography would be overbroad -- and invalid -- under this rule.

Content Neutral Regulation

When the government seeks to regulate expression without regard to its content, it must have a significant governmental interest, the regulation must be narrowly tailored to serve the government interest and the government must leave open alternative means for communicating the information. For example, if a group seeks to conduct a politically themed parade down EDSA, the government may require a permit be obtained and create certain requirements for obtaining the permit that relate to the public safety and traffic control -- both significant government interests. However, under this rule, the government could not deny a permit because they do not agree with the messages to be shouted in the parade.

If we assume that the Bureau of Immigration can detain and deport an alien unilaterally, such as Kosin, for writing offensive and inflammatory messages on a publicly accessible internet site such as Facebook, we must ask ourselves, what is the compelling government interest (if its content based regulation) or what is the significant government interest (if its content neutral). The case has not been made. Preventing people from being offending is not a compelling or significant government interest.

Now, let's look at my other examples. The case of Carlos Celdran is clear -- the government has no compelling government interest in regulating what he said. The crime he was convicted of was content based, it was based on what he said. Had they charged with him tumult or simple trespass, that would have avoided the issue of content based regulation. Instead, they charged and convicted him based on the content of his message. There is no compelling government interest and so his conviction should be vacated by the Supreme Court on those grounds. (There are others also in that the application of penal law to protecting religious sensibilities both entwines government with religion prohibited by the non-establishment of religion provision and also could impair the free exercise of religion provision.)

With respect to penal laws against defamation, the rule that the freedom of expression prohibits a public figure from recovering damages for a defamatory falsehood unless he proves that the statement was made with the knowledge that the statement was false or with reckless disregard of whether it was false. This is an alternative phrasing of the content based regulation rule. In other words, using the courts to obtain a money judgment through defamation is content based regulation. The only compelling government interest in preventing defamation is (1) when false statements are published against a public figure knowing that the statements are false or recklessly disregarding whether the statements are true or (2) when false statements are published against a private figure negligently. Defamation actions can only be sustained when the actions are brought to vindicate those very narrow windows of exceptions. That means that investigative reporting seeking to review the sexuality of Piolo Pascual would never be subject to a defamation suit. And if someone like Lolit Solis were to publish statements about a showbiz actor's sexuality, truth would be a defense because defamation actions can only be brought to remedy falsehoods that are known or recklessly published without regarding to their truth. Speaking the truth cannot be curtailed through defamation because there is never a compelling government interest in preventing people from knowing the truth.

In regulating broadcast television accessible over the public airwaves, the government generally asserts that it has a compelling government interest in preventing children from observing indecency. The MTCRB system, with respect to television, may be a narrowly tailored method of prevent children from observing indecency. However, the censoring and control of the content of movies under the MTCRB system does not stem from the same compelling government interest. Unlike the public airwaves of broadcast television, movies are produced and distributed primarily through threaters and video sales -- although some movies do end up on Saturday television. The rating system of the MTCRB (and the more often experience of directors changing the content of their films to qualify for a more expansive/inclusive rating) is undoubtedly a prior restraint on the director and violations the requirements for Content Based Regulation. There are less intrusive methods of preventing children from observing indecency in movies than to directly censor movies. Narrowly drawn regulations of movies theaters and distribution of video can achieve those goals without interfering with adults ability to choose to view movies that might otherwise be indecent. It is because a movie theater does not have a captive audience the way a broadcast television station using the public airwaves does that television and movies cannot be regulated the same further. (And just in case you were wondering, cable television could not and should not be subject to the same regulation as broadcast television since cable television has the technological means of preventing indecency being seen by children and people have to opt into cable television by buying a subscription.)

Now, let's briefly get back to this unwritten power of the Bureau of Immigration to deem someone undesirable and deport them. This unwritten power that appears to lack any standards (and be different from the standards set out in statute) violates the protection of freedom of expression and to due process as being vague. Due process requires that someone be given fair notice of what conduct is prohibited. In the realm of free expression, a regulation is vague when one does not know precisely what is prohibited and ends up having a chilling effect on expression. Sometimes its impossible to determine what the compelling government interest is in a vague regulation and will always fail the "narrowly tailored" requirement since it is impossible to know what is being regulated. Vagueness is such a danger to freedom of expression because it empowers government actors with unfettered discretion to make determinations about content which can only occur when a compelling government interest is present.

I'm sorry for such a long and windy entry about this issue. The Bureau of Immigrations detention and possibly deportation of Kosin, however, cannot be justified in view of the limitations it has regarding the freedom of expression. It's targeting of Kosin is content based regulation. It has failed to demonstrate a compelling government interest (especially since he has been convicted of no crime and it doesn't appear that he otherwise falls under the justifications for deportation) and therefore deportation is not narrowly tailored to meet this non-existent government interest.

Everyone who believes in creativity and the freedom of expression should be worried. The use of government power to pick and choose whose ideas may be legitimate and punishing those whose ideas have been deemed illegitimate has a chilling effect on all of us. It distorts the landscape of ideas and prevents, by degree, the ability to come to know the truth at all. Expression should not be permitted based on the popularity of its content. It is only in being secure in our beliefs in the face of difference do we really encounter the touchstone of our truth.


  1. I read somewhere that his visa wasn't current or something. I know that they wouldn't have looked into it had he not posted the things he said but glass houses?

    1. sorry learning how to use these new features. lol

  2. they issued a warrant for his removal based on a finding of the BI that he was "undesirable" not on a finding that his visa was expired. such a finding would have allowed him to pay a fine and have it extended, renewed, etc.,. in order to deport him, he'd have to have triggered one of the statutory requirements OR this not-law-based "undesirability" determination which lacks any objective standards