Stratbase ADRi Occasional Paper, Monthly · 2019. 6. 4. · Comelec.10 The Philippine Supreme Court...

CHARTING THE FUTURE OF THE

MARKET FAILURE?“MARKET PLACE OF IDEAS”IN THE PHILIPPINES

RE-EXAMINING THE METAPHOR OF THE

OCCASIONAL PAPER PUBLICATIONS

ISSUE 12.5MAY 2019

Image Credit:socialbakers.com/blog/2658-the-fake-news-debate-on-social-who-s-responsible* The views and opinions expressed in this Paper are those of the author and do not necessarily reflect those of the Institute.

Since President Duterte’s assumption of office in 2016, fundamental ideas about human rights and freedom of expression have been pushed to the forefront of national debate. The country has witnessed the persistent attack – and killing – of human rights defenders in the past three years. Senator Leila de Lima, one of the early vocal critics of the administration’s “war on drugs,” has since been in jail on trumped up charges. The slew of cases filed against Rappler, perceived by some as the most relentless media outlet in its reporting of the drug war, has undermined the landscape of a free Philippine press. Rappler’s Maria Ressa has been twice arrested in the past year alone. In 2017, Duterte threatened to abolish the Commission on Human Rights of the Philippines (CHR), the constitutional agency mandated to investigate human rights abuses by the state. This was in part motivated by the CHR’s documentation of the civilian deaths linked to the current administration’s

campaign against illegal drugs. At one point, the House of Representatives attempted to give the CHR an annual budget of only PhP 1,000.00, before it was blocked by the Senate.

An equally effective attack on human rights and speech freedoms is the deliberate distortion of their applicability. Duterte and his supporters have constantly demonized the concept of human rights and have misused and weaponized human rights concepts against critics. For instance, Duterte constantly invokes his “freedom of expression” to defend rape jokes and discriminatory remarks against women,1 implying that his statements constituted protected speech. However, this assertion misses the fundamental premise of the Bill of Rights – that these rights are individual protections against state intervention, and not a means for state officials to deflect criticism of remarks made in an official capacity to condone or encourage crime.

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THE MARKET PLACE OF IDEAS

The metaphor of the "marketplace of ideas" remains a popular semantic tool used by Philippine courts to fashion the metes and bounds of allowable expression. The utility of the metaphor has remained unquestioned since its early jurisprudential usage to articulate the right to freedom of speech guaranteed in the 1987 Philippine Constitution. This paper will discuss how new developments in the Philippines – such as the large-scale and systematic violence brought by the "war on drugs" and the onset of social media – bring to light the limitations of the metaphor. It will suggest the possible dangers of mooring speech freedoms on the naïve wish that truth will prevail in an open and uninhibited speech market.

OCCASIONAL PAPER MAY 2019

02MARKET FAILURE?“MARKET PLACE OF IDEAS”IN THE PHILIPPINES

RE-EXAMINING THE METAPHOR OF THE

language until a quarter of a century later, when the speech market model was resurrected by J. Brennan in the 1945 case, Thomas v. Collins. As Tsai observed, the “marketplace” metaphor supplemented the image of fire that had so long dominated US free speech doctrine until then. For Tsai, the metaphor’s rebirth and subsequent popularity coincided with historical developments in the United States. By the time of the Cold War, America had become a “confident exporter of markets and ideology.” Further, there was a burgeoning capitalist culture where economic goods resonated with the “impulse to commodify, repackage, and distribute.”7 As economic markets developed, so did the idea that free speech doctrine was best framed in economic terms.

It was only a matter of time for the phrase to find its way in Philippine shores. Interestingly, the metaphor’s early use in Philippine case law involved an uncanny parallel to its first use in the First Amendment. In Taruc v. Court of First Instance,8 Justice Sarmiento used the metaphor to register his dissent to the majority ruling. The Court held that the Anti-Subversion Law provision criminalizing membership in the Communist Party of the Philippines was constitutional. Justice Sarmiento criticized the martial law relic as inimical to freedom of expression. Communism and the tenets of the “legal Left” were, in Justice Sarmiento’s view, best “tested in the democratic marketplace of ideas” rather than in legislation forming a tight grip on ideology. The better mechanism was to let “the better debater win” in an unrestricted market.

The second model, under Sunstein’s formulation, is aimed at democratic deliberation among the citizenry. Under the democratic model, “governmental efforts to encourage diverse views and attention to public issues are compatible with the free speech

“Fake news” has also circulated in the Philippine speech landscape in an unprecedented scale. In a groundbreaking study,2 Jason Cabañes and Jonathan Ong unveiled the intricate network of disinformation that was deployed on social media to score important political wins during the 2016 presidential elections. The culture of disinformation has spilled over to the president’s term. At one point, false information was exploited by Mocha Uson to rally support for the war on drugs.

Amid all this, the metaphor of the “marketplace” serves as a powerful analytical lens to conceptualize the free flow of information and ideas undergirding the Philippine speech landscape. Disinformation, incitement, and offensive speech are expected to be flushed out by the power of truth. In this paper, I wish to explore the fullest expression of the “marketplace of ideas” metaphor that courts use to lay out speech doctrine. As the constitutionalist, Robert Tsai, notes, “it is well worth emphasizing that doctrine and myth go hand in hand. One is nothing without the other…. Each derives content and legitimacy from its association with the other.”3 Rather than passively accepting this dominant juristic image, I further suggest deeper examination of the metaphor’s ideological assumptions and legal consequences. Pushed to its logical extreme, the marketplace of ideas, as a vintage of economics, can also mean the following in the realm of speech – a space where the one with the most resources dominates.4 This grim perspective undermines the classic wishful thinking that truth will prevail in an unfettered market. At the same time, treating the “marketplace” as a fixed concept over time ignores its continuing reconstruction in light of sociopolitical and technological developments.

TRADITIONAL CONCEPTIONS

The legal scholar Cass Sunstein identifies two speech models contained in the US First Amendment speech doctrine, which the Philippine legal tradition has inherited: a well-functioning speech market and the tradition of public deliberation. The first model is premised on the “great distrust of government” and is best personified by the metaphor of the “marketplace of ideas.” Under this model, freedom of speech required, “at least as a presumption, a system of unrestricted economic markets in speech. Government must respect the forces of supply and demand.” Only structural regulation was permitted in a laissez-faire economy. Regulatory controls were limited to the kind that ensured market stability, particularly those designed to protect against market failures, information monopolies, and monopolitic practices. Content-based, and especially viewpoint, restrictions were generally shunned.5

In US First Amendment jurisprudence, the metaphor was born in Abrams v. United States,6 a 1919 case that convicted two anti-war activists under the US Sedition Act of 1918. The defendants were protesting America’s participation in the First World War. In his dissent, Justice Holmes asserted the value of a “free trade in ideas” in man’s quest for truth, and the “best test of truth is the power of the thought to get itself accepted in the competition of the market.” Central to the idea of the marketplace metaphor is the premise that if, functioning well, truth can be ferreted out in full glory.

Despite the marketplace metaphor’s present influence, the phrase “marketplace of ideas” did not assume its current doctrinal


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principle – even if they result in regulatory controls on the owners of speech resources.”9 This was not to say that government can regulate content as it wished; rather, it may regulate civic space only “to promote, in a sufficiently neutral way, a well-functioning democratic regime.” This was the spirit behind the ruling in Osmeña v. Comelec.10 The Philippine Supreme Court held constitutional the provision in the 1987 Electoral Reforms Law prohibiting mass media from selling or giving free of charge print space or air time for campaign or other political purposes, except to the Commission on Elections (COMELEC). According to the Court, this ensured equal air time among political candidates to public office, and prevented concentration of political ad space to those with “deep pockets.” The underlying goal in the regulation is to expose the voting public to an extensive and diverse array of political views necessary for exercising the right of suffrage.

A similar exercise was arguably made in the Philippine case, The Diocese of Bacolod v. Commission on Elections.11 Here, the Court invalidated COMELEC’s notice and letter prohibiting the petitioner from posting two tarpaulins that listed the pro-RH political candidates as “Team Patay” and the anti-RH advocates as “Team Buhay” on the walls of a Catholic cathedral. The Supreme Court viewed this as a form of content-based restriction amounting to censorship. Though not explicitly stated in the decision, the Court’s ruling is consistent with the idea of public deliberation as the basis of fostering expression, even as it was ostensibly justifying its holding on Holmesian language reflective of a speech market model.

At times, images of fire and market are simultaneously infused in the formulation of Philippine free speech doctrine, reminiscent of the battle for dominance of these two images in US First Amendment cases. In Iglesia ni Cristo v. Court of Appeals,12 prior restraint of religious programs was held unconstitutional on the basis that the marketplace of ideas must permit “duelling ideas.” In the view of the

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C 2019 STRATBASE ADR INSTITUTE for Strategic and International Studies. All rights reserved.

Philippine Supreme Court, it is “the spark of opposite speech [and] the heat of colliding ideas that can fan the embers of truth.” However, this does not excuse religious leaders who utter slanderous remarks on television.13 The Supreme Court drew a line on expressions that were nothing but “a slaughterhouse of names and character of persons or on a butchery of all standards of decency and propriety.” This, according to the Court, will not result in a “more deliberative democracy.” The marketplace of ideas had no place for words like “gago”, “demonyo”, and “putang babae” spoken under the guise of free exercise of religion. Notably, the Court here relied on both the speech market and democratic models, seamlessly fusing them together.

ALTERNATIVE MARKETPLACES: MASS ATROCITY SITUATIONS

In 2016, the Philippines was in the international limelight for good reason: the Prosecutor of the International Criminal Court (ICC) had just released an official statement14 on the potential prosecution of those inciting violence in connection with the Philippine drug war. This was presumably a response to Philippine President Rodrigo Duterte’s support for the drug-related killings, the most vitriolic of which was the line, “Hitler massacred 3 million Jews... there’s 3 million drug addicts… I’d be happy to slaughter them.”15

International criminal law punishes the crime of direct and public incitement to commit genocide. Enshrined in the Genocide Convention, the speech crime was transplanted in the founding statutes of international criminal tribunals and later on, in the Rome Statute establishing the ICC. Notably, the act referred to here only relates to speech in relation to genocide’s constitutive elements. There is no speech crime for inciting crimes against humanity. Such

speech must instead be prosecuted as a mode of contributory liability in the commission of crimes against humanity itself.

The incitement landscape during the Holocaust and Rwanda genocide has been described as a “failed marketplace.”16 According to this view, state ownership of speech infrastructure removes any marketplace to speak of, where ideas can freely compete and “truth” can prevail. The use of the metaphor comports with the US First Amendment’s influence on international criminal law. In Prosecutor v. Nahimana, a landmark case at the International Criminal Tribunal for Rwanda, Judge Theodor Meron anchored his dissent to Nahimana’s conviction for hate speech persecution by invoking the principles enunciated in Brandenburg v. Ohio. For Judge Meron, hate speech can only be prosecuted– even in the Rwanda context – if it satisfies the Brandenburg formula of “direct threat of violence or an incitement to commit imminent lawless action.” Political dissent that “falls short of true threats or incitement” must be protected “especially in nascent democracies” where it might generate a chilling effect.17 Meanwhile, in the ICC case, Prosecutor v. Sang, Sang raised the defense of protected speech against the crimes against humanity charge. He compared his discriminatory statements against the Kikuyu tribe to Donald Trump’s racist slurs against Mexicans.18

What is notable in Nahimana and Sang is the analytical disregard of their respective incitement landscapes vis-à-vis the US context invoked as a counterpoint. Judge Meron referred to “nascent democracies” in order to justify similarity in treatment. The equivalence placed in these marketplaces is presumed. More importantly, it takes for granted the applicability of the marketplace metaphor in all contexts, disregarding the possible ramifications of a backdrop of atrocity crimes on the speech


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landscape. This is relevant in appreciating Duterte’s statements on the war on drugs:

These sons of whores are destroying our children. I warn you, don’t go into that, even if you’re a policeman, because I will really kill you. If you know of any addicts, go ahead and kill them yourself as getting their parents to do it would be too painful.19

If you lose your job, I’ll give you one. Kill all the drug addicts. Help me kill addicts. Let’s kill addicts everyday.20

Do not bullshit with me but do your duty, I will die for you. Do your duty and if in the process you kill 1,000 persons because you were doing your duty, I will protect you.21

There will be no let up in this campaign. Double your efforts. Triple them if need be. We will not stop until the last drug lord, the last financier and the last pusher have surrendered or put behind bars. Or below the ground if they so wish.22

Fuck you UN, you can’t even solve the Middle East carnage ... couldn’t even lift a finger in Africa [with the] butchering [of] the black people. Shut up all of you.23

Hitler massacred 3 million Jews ... there’s 3 million drug addicts. There are. I’d be happy to slaughter them.24

Do the lives of 10 of these criminals really matter? If I am the one facing all this grief, would 100 lives of these idiots mean anything to me?25

Such speech coincided with the onslaught of civilian deaths arising from the implementation of the government’s anti-


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drug policy, now estimated to have 27,000 unlawful killings since 2016. Will the same demonizing speech acquire similar resonance in a landscape where widespread and systematic violence is absent?

The current definition of crimes against humanity, untethered to the existence of armed conflict, renders more nuance to the appreciation of the “failed marketplace.” The Rome Statute affirmed that crimes against humanity need not occur in relation to an armed conflict. Instead, the gravamen of the crime is partly found in the nature of the civilian attack– it must be a “widespread or systematic attack committed against the civilian population” and “pursuant to a state or organisational plan or policy.”26 The ICC situation in Kenya involved electoral violence, further characterized by ethnic tensions. The Philippine war on drugs is further removed; here is a case of systematic and widespread civilian attack unmotivated by politics, conflict, or warring groups. The social media era also complicates this. Before, the “failed marketplace” could be attributed to the state’s monopoly of communications infrastructure, thereby enabling the state to disseminate its own propaganda. Today, however, state control is negated by private ownership of social media platforms not legally present in the jurisdiction of the “host” state.

The common criticism of the “marketplace” metaphor is its assumption of a civic space composed of rational individuals capable of deliberation.27 On this basis, “truth” can be achieved based on a careful consideration of competing ideas, perfectly synonymous with the assumptions in J. Sarmiento’s dissent in Taruc: let the better debater win. However, in struggling democracies, especially those afflicted with large scale violence, this assumption cannot be further from the truth. Truth is even more elusive where rationality is constrained by real-world consequences that could cost one’s life.

ALTERNATIVE MARKETPLACES: SOCIAL MEDIA

Social media, to many, promised stronger democracy. Justice Sereno recognized this in her dissent in Disini v. Secretary of Justice – “ICT has proven to be an ally of democracy.”28 By opening the channels of information and communication, the hope was that more people, especially previously disenfranchised groups, would now be empowered to speak up. Social media platforms, in this way, represented the fullest expression of a thriving marketplace. They provide a socially constructed space where, literally, millions of ideas can and do compete, at least in theory.

Others have not been as optimistic. Sunstein argued that “free markets in communications will be a mixed blessing,” culminating in a ‘race to the bottom’ in which people are more likely to be exposed to low quality speech and narratives that conform to users’ preconceived judgments.29 Stanley Ingber was likewise of the view that people in the speech market tend to listen to ideas that already resonate with their own, and have difficulty accepting ideas that clash with their interests and biases.30 Ingber’s theory is reinforced by the “echo chamber” effect of social media, where technology has facilitated a rejection of alternative perspectives through the self-affirming, personalized News Feed.

The human rights crisis in Myanmar demonstrated the worst impact of a market literally left to its own devices. In Myanmar, Facebook had no legal presence and was found to have no significant competitor. The government also did not impose structural regulations on social media infrastructure. In a country transitioning to democracy, the speech market could not sustain itself simply according to the laws of economics. Like any media, platforms can be wielded either way, to liberate or to kill. In 2018, the United Nations International Independent Fact-Finding

Mission on Myanmar found that Facebook was exploited by ultranationalists to spread anti-Muslim hate speech against the Rohingya, leading to the ethnic group’s forced displacement, ethnic cleansing, further persecution, rape, and murder. In the Philippines, disinformation campaigns deployed by trolls to catapult one type of message to the top of the News Feed proved instrumental in spelling out the results of the 2016 national elections. False information circulated to justify support for the drug war was also prevalent. Notably, both countries have ongoing ICC preliminary examinations.

LIMITATIONS OF THE SPEECH “MARKET”

The manipulation of the social media infrastructure to silence opposing views exemplifies the limitations of the marketplace metaphor. Viewed in this manner, the marketplace analogy does not necessarily lead to the “truth” but rather, to the “best” ideas espoused by the dominant or hegemonic class.31 Tsai thinks the same. The “marketplace” metaphor can convey “freedom, space, order, neutrality, autonomy, and exchange,” but “[i]n the hands of a constitutional actor who would take the metaphor literally (and completely), it is apt to denote servitude, powerlessness, chaos, wealth inequality, coercion, and raw political power.”32 Power refers to all forms – political, financial, ideological. John Stuart Mill, to whom the concept of the “marketplace of ideas” is originally credited, himself warned us that tyranny can come not only from government, but also from the majority. That is, “the will of the most numerous or the most active part of the people.” That is why minority views should not only be tolerated but “encouraged and countenanced.”33

Political tyranny may not assume the form of state monopoly of media infrastructure, but dissent is nonetheless effected through


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the manufacture of noise. This is further influenced by social media platforms’ business model and profit motive, which in turn affect the laws of supply and demand of online speech markets. It is also not yet clear as to how mass atrocities qualify the conception of the speech market, especially given the broader definition of crimes against humanity.

Structural regulation of the online speech market has been suggested; but in Global South countries where alternative spaces are scarce, finding a solution to prevent market failure is not always clear cut. Ressa, one of the main victims of sinister information operations in the Philippines, provides a grim explanation of her continued cooperation with Facebook: “I don’t think we have a choice.”34

In any case, the whole premise of “truth”-seeking in a speech market where the “best” idea refers to that “demanded or adopted by the most powerful or most numerous”35 provides a counter-narrative to the blind assumption of the marketplace metaphor’s progressive and egalitarian mission.

CONCLUSION

As the dominant image used to spell out the scope of Philippine free speech doctrine, the ideological ramifications of the marketplace metaphor must be critically examined in its fullest expression and in light of new national experiences. In the US context, Gordon has raised the inconsistency between Mill’s view of expression and the 20th century libertarian paradigm of the

speech market model. Ingber recommended a renewed focus on diversity of experiences rather than expressions alone. Jared Schroeder has suggested a more coalition-oriented process of truth-seeking, rather than Enlightenment era-esque formulations. Significantly, flat similarity cannot be assumed in all contexts and speech landscapes, as the receptivity of a particular statement in one country might be different in another. The experience of anti-Muslim hate speech in Myanmar and the sophisticated trolling industry in the Philippines have both shown the inadequacies of a laissez-faire “market” approach.

Perhaps the strong semantic appeal of the marketplace metaphor is best rendered by its picture of stability, exemplified by its geographic location, which acts as a stable point of reference grounding the fluid nature of language. One frequents the market, physically, or by logging in, and is at once confronted by a deluge of competing ideas up for grabs, commodities to be bought and consumed. Regardless, courts must be wary of the full weight of the metaphor. After all, “[t]rying to impose a unitary metaphor upon this body of norms is not merely a linguistically hopeless endeavor, it is also a jurisprudentially suspect one…. No single metaphor can possibly capture the full range of First Amendment commitments.”36 Likewise, the various socio-political upheavals in the Philippines provide a good basis for our continued doctrinal questioning.


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endnotes

1 CNN PHILIPPINES, Duterte tells women not to deprive him of freedom of expression (Mar. 11, 2019), available at http://cnnphilippines.com/news/2019/3/11/Duterte-tells-women-not-to-deprive-him-of-freedom-of-expression.html; THE PHILIP-PINE STAR, Duterte: ‘Rape joke? It’s freedom of expression, (Sept. 4, 2018), available at https://www.philstar.com/headlines/2018/09/04/1848580/duterte-rape-joke-its-free-dom-expression. 2 Jason Cabañes and Jonathan Ong, Architects of Networked Disinformation: Behind the Scenes of Troll Accounts and Fake News Production in the Philippines, New-ton Tech4Dev Network (2018), available at https://newtontechfordev.com/wp-content/uploads/2018/02/ARCHITECTS-OF-NETWORKED-DISINFORMATION-FULL-REPORT.pdf. 3 Robert Tsai, Fire, Metaphor, and Constitutional Myth-making, 93 GEO. L.J. 181, 235 (2004). 4 Jill Gordon; Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, 27 (1984). 5 Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1760-1761 (1994). 6 250 U.S. 616. 7 Tsai, 231-232. 8 G.R. No. L-34836 (Nov. 29, 1989). 9 Sunstein, 1760. 10 G.R. No. 132231 (March 31, 1998). 11 G.R. No. 205728 (Jan. 21, 2015). 12 G.R. No. 119673 (July 26, 1996). 13 Soriano v. Movie and Television Review and Classification Board, et. al., G.R. No. 165636 (Apr. 29, 2009). 14 Statement of the Prosecutor of the International Criminal Court, Fatou Ben-souda concerning the situation in the Republic of the Philippines (Oct. 13, 2016), avail-able at https://www.icc-cpi.int/pages/item.aspx?name=161013-otp-stat-php. 15 Karen Lema, Manuel Mogato, Philippines’ Duterte likens himself to Hitler, wants to kill millions of drug users, REUTERS (Sept. 30, 2016), available at https://www.reuters.com/article/us-philippines-duterte-hitler/philippines-duterte-likens-himself-to-hitler-wants-to-kill-millions-of-drug-users-idUSKCN1200B9. 16 Susan Benesch, Vile Crime or Inalienable Right: Defining Incitement to Geno-

cide, 48 Virginia J. of Int’l. L. 485, 495-496 (2008): (“The second reason why U.S. free-speech doctrine is not relevant to incitement to genocide is that the ‘marketplace of ideas’ theory fails in this context”); See Margaret Eastwood, Hitler’s notorious Jew-baiter: the prosecution of Julius Streicher, PROPAGANDA, WAR CRIMES TRIALS AND INTER-NATIONAL LAW: FROM SPEAKERS’ CORNER TO WAR CRIMES 203, 205 (Predrag Dojčinović ed., 2012) (showing that Streicher’s ideas were disseminated at a time where there was no free market to speak of). 17 Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Dissenting Opinion of Judge Theodor Meron, (Dec. 3, 2003) ¶ 11. 18 Prosecutor v. Ruto and Sang, No. ICC 01/09 01/11, Sang Defence “No Case to Answer” Motion filed on 23 October 2015, (Nov. 6, 2015) ¶ 49-50. 19 Guardian Staff and Agencies, Philippines president Rodrigo Duterte urges people to kill drug addicts, THE GUARDIAN (June 30, 2016, 10:16 PM) https://www.theguardian.com/world/2016/jul/01/philippines-president-rodrigo-duterte-urges-peo-ple-to-kill-drug-addicts 20 Eleanor Ross, Philippine president Rodrigo tells jobless Filipinos to kill drug addicts, NEWSWEEK (April 20, 2017, 5:17 AM) ( http://www.newsweek.com/president-duterte-offers-unemployed-job-kill-586592. 21 Bea Cupin, Duterte to PNP: ‘Do your duty and I will die for you’, RAPPLER (July 1, 2016, 3:22 PM) (https://www.rappler.com/nation/138296-duterte-pnp-duty-die-for-you. 22 Martin Petty & Karen Lema, Duterte defends deadly crime crackdown in na-tional address, REUTERS (July 25, 2016, 2:23 AM) https://www.reuters.com/article/us-philippines-politics-duterte/duterte-defends-deadly-crime-crackdown-in-national-address-idUSKCN1050FX?il=0. 23 Damien Gayle, More than 700 people killed in Philippines drugs crackdown, THE GUARDIAN (Aug. 2, 2016, 11:45 AM) https://www.theguardian.com/world/2016/aug/02/more-than-700-killed-in-less-than-three-months-in-filipino-drugs-crackdown. 24 Karen Lema & Manuel Mogato, Philippines’ Duterte likens himself to Hitler, wants to kill millions of drug users, REUTERS (Sept. 29, 2016, 11:04 PM) https://www.reuters.com/article/us-philippines-duterte-hitler/philippines-duterte-likens-himself-to-hitler-wants-to-kill-millions-of-drug-users-idUSKCN1200B9; Tribune News Services, Philippines president compares himself to Hitler; ‘happy to slaughter’ drug addicts, CHI-CAGO TRIBUNE (Oct. 1, 2016, 7:21 AM), available at http://www.chicagotribune.com/news/nationworld/ct-philippines-duterte-slaughter-drug-addicts-hitler-20160929-story.html. 25 Philippines President Rodrigo Duterte in Quotes, BBC (Sept. 30, 2016), avail-able at http://www.bbc.com/news/world-asia-36251094. 26 Rome Statute, art. 7.

27 Jared Schroeder, Toward a discursive marketplace of ideas: Reimaging the marketplace metaphor in the era of social media, fake news, and artificial intelligence, First Amendment Studies (2018), at 46. 28 G.R. No. 203335 (Apr. 22, 2014). 29 Sunstein, 1763. 30 Ingber, 26. 31 Gordon, 16-17. 32 Tsai, 234. 33 Gordon, 15 (quoting Mill, On Liberty). 34 Maria Ressa, Facebook Let My Government Target Me. Here’s Why I Still Work With Them., TIME (Jan. 17, 2019), available at http://time.com/5505458/face-book-maria-ressa-philippines/. 35 Gordon, 20. 36 Robert Tsai, Fire, Metaphor, and Constitutional Myth-making, 93 GEO. L.J. 181, 235 (2004).


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is an independent international and strategic research organization with the principal goal of addressing the issues affecting the Philippines and East Asia

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9F 6780 Ayala Avenue, Makati CityPhilippines 1200V 8921751F 8921754www.stratbase.ph

ABOUT

Atty. Jenny Domino

is a Harvard Satter Human Rights Fellow at ARTICLE 19. Her human rights work focuses on international criminal accountability, constitutional structure, and the limits of freedom of speech in situations of mass atrocity. She received her Master of Laws degree at Harvard Law School and a Juris Doctor degree from the University of the Philippines, where she was Chair of the Philippine Law Journal. She also held the 2018 Global Diversity Fellowship of Vrije University Amsterdam’s Center for International Criminal Justice.

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