Are violent video games protected speech?

This is the question the parties in Schwarzenneger v. Entertainment Merchants Association (EMA) argued before the US Supreme Court (SCOTUS) on November 2nd. The case emanated from a law passed by the State of California which bans the sale of ultra-violent video games to minors, arguing that such forms of entertainment have detrimental effects on children.

The 2005 law, however, failed to take effect after lower courts in California blocked its implementation citing, chiefly, violation of children's First Amendment right. The First Amendment to the US Constitution prohibits laws infringing on free speech.

During the November 2nd oral argument before the SCOTUS, while the justices appear to be sympathetic with the law's objectives, most of their questions seem to point to a direction where the court will not carve out an exception to the First Amendment - at least for depiction of violence. Justices Ruth Bader Ginsburg and staunch court conservative Antonin Scalia asked the proponents of the law on where regulation would stop if the court were to allow it. Ginsburg asked whether movies, which clearly portray violence, and comics would be next. Scalia, on the other hand, ever the originalist (the view of interpreting the constitution according to the framers' intent), argued that the founding fathers never intended to exclude portrayals of violence from the coverage of free speech.

One court observer, however, notes that sometimes the justices vigorously question the position of the party in whose favor they would later on rule, if only to test arguments that could change their minds. So the oral argument is not really a good indicator of which direction the court will go on this issue. Legal analysts would focus more on the merits of the case.

There is no question that video games constitute speech, but the question is do they fall within the ambit of protected speech? If not then the California law will be declared unconstitutional. The law being a content-based regulation (the content of the speech itself - portrayal of violence in the games - is being sought to be regulated), the SCOTUS will likely apply the strict scrutiny standard, which is a very difficult standard to pass. Under this standard, the two tests to apply if the law were to pass constitutional muster are: (1) is there a compelling or overriding governmental interest in passing the law? (2) is the law "narrowly tailored" in accomplishing that interest?

Applying these two tests to the video games law, the State of California must present conclusive evidence that ultra-violent video games have adverse psychological effects on children. But that is only half the test. The proponent must also show that there are no least restrictive means of regulating speech, meaning the manner the law seeks to regulate the targeted speech must be the least restrictive, hence "narrowly tailored." To this, the entertainment industry is arguing that the current rating system of video games by the Entertainment Software Rating Board (ESRB), such as the "M" (mature) rating for violent games, is the least restrictive and should be sufficient.

This is the biggest case yet involving the video games industry. It is probably one of the reasons why among thousands of cases that regularly land on the doorsteps of the SCOTUS, the high court decided to allow this petition. If the SCOTUS upholds the law, minors would still be able to buy violent video games through an adult, much like in the case of alcohol and tobacco. But First Amendment advocates fear such ruling would open the floodgates for regulation of other media.

Scrapping the Pork Barrel

Many lawmakers are worried about the Aquino Administration’s plan to slash the Priority Development Assistance Fund or what is commonly and contemptuously known as “pork barrel.” This plan has reportedly divided even members of the president’s own party, such as Quezon City Rep. Feliciano Belmonte, prospective speaker of the house, who is said to have assured lawmakers that the pork will stay in contrast with Rep. Lorenzo Tañada III, also of Quezon City, who proposed to cut the funding into half.

Pork barrel funds or politics refers to the practice of allocating public funds to finance local projects, usually infrastructure projects, in a lawmaker’s district or, in the case of senators, in localities selected by them. Each congressman is allocated pork barrel funding of up to P70 million, while each senator up to P200 million.

The most common argument lawmakers present in support of the pork is that it is a way of equalizing the distribution of government services to the people. As their representatives, lawmakers know more what services are needed by their constituents and the pork barrel is a way of extending the arm of the government in areas not being serviced by it.

However, since lawmakers are given the discretion in identifying what projects to undertake and which localities to benefit, the pork barrel is seen as a source of corruption for lawmakers by receiving kickbacks from the projects and a form of patronage politics, in which the projects are undertaken to reciprocate the support given by a certain locality during the past election or as a means to generate votes for the lawmaker in future elections.

What is also objectionable is that the pork barrel is funded by the taxpayers in general and yet it only benefits certain localities selected by the lawmaker. It may be argued that since every district has a representative, ultimately all localities may benefit in one way or the other from these allocations. But nothing is farther from the truth. In reality, not all localities get the benefit and the most that get it are the supporters of the benefactor lawmaker. Also, not all lawmakers get equal allocation, not to mention speedy release, of these funds; it all depends on how close the lawmaker is with the powers that be.

The Aquino Administration’s approach of slashing the pork barrel is more moderate than eliminating it altogether. But if it were up to me, scrapping it is more preferable and just leave the determination and delivery of beneficial projects to our local executives in coordination with the national government. After all, this is an executive function which a legislator is not supposed to engage in the first place.

By scrapping the pork barrel, our lawmakers will be forced to concentrate more on their primary and traditional role of legislating. To be sure, the many contenders for congressional and senatorial post, not to mention the party-list, will be dramatically cut down since this will deter the many aspirants who have no legislative agenda at all, let alone the ability to craft laws and debate about them. The halls of congress is not the right place for them if their main incentive for running is the promise of fat pork allocation.

Revisiting Midnight Appointment Cases

When the Supreme Court, under a new leadership, resumed session last Tuesday, it was confronted once again with the nagging issue on the power of the outgoing president to appoint retired Chief Justice Reynato S. Puno's replacement, with the filing by the Philippine Bar Association of a second motion for reconsideration of the decision in De Castro v. JBC. I can only surmise the uncomfortable situation Chief Justice Renato Corona must have found himself in when he presided over the Court to tackle the question on the legitimacy of his appointment.

The widely criticized De Castro was of course the March 17 decision that paved the way for CJ Corona's appointment by lameduck President Gloria Macapagal-Arroyo (GMA). The case involves the applicability of the constitutional ban on the appointing power of an outgoing president, particularly with respect to vacancies in the judiciary, two months prior to and until the end of her term. This is known as the ban on midnight appointments.

Penned by my former law professor, now Justice Lucas Bersamin, the De Castro ruling held that the ban does not apply to appointments in the judiciary because of a specific command in the Constitution for the president to fill any vacancy in the Supreme Court within 90 days from its occurence. The decision goes on to say that failure of the president to make such appointment would amount to a disobedience of the Constitution. Justice Bersamin raciocinated that had the framers of the Constitution intended to make the ban applicable to the judiciary, they could have expressly stated so under the article dealing with the judiciary; that by appearing on the article dealing with the presidency, the ban applies only to the executive department.

But Justice Conchita Carpio-Morales was unimpressed by the majority's ruling and filed a strong dissent by characterizing Justice Bersamin's reasoning as specious, weak and without legal mooring. She attacked Justice Bersamin's reliance on the structural arrangement of the Constitution in justifying the decision and for failure of the decision to resort to basic rules on the interpretation of the Constitution. For example, the lady justice pointed out that it is basic in constitutional interpretation that where there is no ambiguity the Constitution should be interpreted according to its plain meaning. According to her the prohibition on the president to make any appointment within the prohibited period, except when public service would be prejudiced, is a plain and simple blanket prohibition. She also cited the rule that when the law does not distinguish no distinction should be made, and true enough the ban on midnight appointment does not distinguish as to what branch of government it applies.

The dissent also takes exception to the observation that the failure to fill a vacancy in the Supreme Court within the 90-day period amounts to dereliction of duty by the president. It argues that legal impossibility exempts non-compliance with this requirement and the two-month ban precisely excuses such non-compliance and suspends the running of the 90-day period until the ban ends.

Finally, Justice Carpio-Morales laments Justice Bersamin's failure to cite any particular deliberation of the drafters of the Constitution in claiming that the intent of the framers support the conclusion reached by the majority.

De Vera is in sharp contrast with the much earlier decision in Aytona v. Castillo, wherein the Supreme Court ruled that after a newly-elected president has been proclaimed, the incumbent and outgoing president is nothing more than a caretaker whose duty is to see to the smooth transition of power from the old to the new president. Interestingly, Aytona involves the withdrawal by then President Disodado Macapagal, GMA's father, of the 350 midnight appointments made by his predecessor President Carlos P. Garcia in 1961. A day before Macapagal's assumption to office, Garcia issued appointments to both executive and judicial positions.

The Supreme Court upheld the validity of President Macapagal's order canceling or recalling the appointments made by President Garcia without distinguishing between the types of positions involved. Of course, Aytona was decided under the 1935 Constitution which allows reelection of the president.

A much later case, In Re Valenzuela (promulgated in 1998), decided under the present Constitution, likewise did not distinguish between executive and judicial positions when it comes to the application of the ban on midnight appointments. This case involves the appointment of judges. Having fallen within the two-month ban, and there being no justification for the urgency of the appointments, the Supreme Court struck down the appointments as invalid.

Clearly then De Castro departed from the Aytona and Valenzuela decisions. It is worth noting that the Supreme Court, as the final authority to declare what the law is, can reverse itself and even overturn long established principles of law laid down in a particular case. De Castro is definitely such an instance. It is highly unlikely, however, that the Supreme Court will reconsider De Castro, given the fact that CJ Corona has already assumed office. I don't think the Supreme Court is about to strip one of its members of his just conferred primus inter pares status.

LONG LIVE PHILIPPINE INDEPENDENCE!

Corona's Appointment Ties Noynoy's Hands

In clear disregard of the incoming president's prerogative to appoint the next chief justice, outgoing president and incoming congresswoman Gloria Macapagal-Arroyo (GMA) displayed once again her stubbornness by appointing her former chief of staff and spokesperson, now Supreme Court Justice Renato Corona as the next chief justice.

While De Castro v. Judicial and Bar Council has cleared the way for GMA in appointing the next chief justice, courtesy and prudence dictate that she should have let the incoming president have the privilege of appointing the replacement of Chief Justice Reynato Puno, who is set to retire on Monday. The absence of a chief justice will in on way hamper the operation of the high court, it being a collegial body where each member equally exercises judicial functions in collaboration with the others. Besides, an acting chief justice can always be designated in the interim as has happened in the past where the most senior member of the court assumes the role pending the appointment of a chief justice.

GMA's haste in appointing the new chief justice, with only less than two months before her term expires, is once again lending credence to apprehensions of another sinister plot in the making. Just like the no-el scenarios - born out of Malacañang's questionable conduct and pronouncements - this appointment will once more stir our imaginations and make us conclude that GMA is making the final touches to her carapace that will protect her against future prosecutions, especially so that the presidential front-runner Noynoy Aquino has promised to launch an investigation into the allegations of wrongdoing during her administration. And who better to protect her than an old associate like Renato Corona, who has closely worked with her even while she was still a vice president.

But GMA does not only appear to serve her interest in this appointment. She has also put the heir-apparent to the presidency on the spot. Knowing that Aquino has publicly announced before that he will not recognize a GMA-appointed chief justice, the appointment appears to be pitting Noynoy against the Supreme Court (which is packed with GMA appointees) early on in his presidency.

After all is said and done, however, the appointment of Renato Corona has effectively tied the hands of Noynoy. The Supreme Court itself has already spoken that GMA can make the appointment. For Noynoy to disregard such appointment once he assumes power would not only be a legal dent on his young administration, but also antagonize the Supreme Court whose members will not take kindly the embarrassment that will befall one of their own.

If GMA has not seen fit to exercise courtesy and prudence, that's no reason for Noynoy to do the same. Nothing will be gained except to nurse a bruised ego by not recognizing the appointment, however distasteful the manner it has been made. Six years is a long time to be waging losing battles in the Supreme Court.

(Photo Courtesy of www.caloocancity.gov.ph)

Legal and Political Ramifications of Postponing the Elections

The glitches on the voting machines' memory cards found during Monday's mock polls have generated calls for either postponement of the May 10 elections or reverting it to manual voting. Monday's exercise has further heightened the public's fear of a rigged or failed elections, and the Comelec-Smartmatic assurance has not helped in assuaging this fear.

As of this writing, Smartmatic (the company awarded with automating the May 10 polls) is rushing the reconfiguration of the 76,340 defective compact flash (CF) cards - which contain the program for the voting machines to work - in time for the final testing on May 7. There is, however, a well-founded fear that this might not be done, or even if done, the result might still be suspect, considering that it took Smartmatic more or less two months to initially reconfigure these CF cards for the May 10 polls compared to the two or three days Smartmatic will do the second reconfiguring to correct the errors.

No less than the president's top election lawyer, Romulo Macalintal, has called for postponing the elections and even went as far as withdrawing as the president's counsel if only to stress his seriousness. He argues that the Omnibus Election Code (OEC) empowers the Comelec to postpone the election if for some reason it becomes impossible to hold, and proposes that a 15-day postponement would be reasonable to give Comelec more time to prepare.

Constitutional Commissioner Fr. Joaquin Bernas, however, doubts the legality of Comelec's power to postpone under the OEC. He believes the OEC merely empowers the Comelec to postpone in local, but not in national election.

Although the Constitution sets the national election on the second Monday of May, it allows its postponement when a law to this effect is passed by Congress. Given, however, the lack of time to convene Congress, not to mention the preoccupation of many of its members on the campaign trail and the improbability of mustering enough favorable votes, it seems almost impossible now that such a law can still be passed.

On the other hand, the Concerned Citizens Movement, which sought to stop the automated election but failed to do so in Roque v. Comelec, has filed a petition anew with the Supreme Court to hold the election under the manual system for fear of a failed election under the automated system. It is unlikely, however, that the Supreme Court will give the petition due course. For one, the case or controversy requirement that will move the high court to entertain the petition is missing. While the automated election system (AES) has experienced glitches during its testing, this alone does not meet the requirement of an actual case or controversy where conflicting legal rights susceptible of judicial resolution are present. Besides, the question on the legality of the automation law has already been passed upon by the court in Roque v. Comelec.

Other sectors, uncluding some presidential candidates, remain firm in their position that the May 10 elections should push through as scheduled. They voice fear that the postponement of the elections will only serve the president's plan of overstaying in power. Malacañang, of course, is wise to distance itself from postponing the elections and the president's prompt acceptance of Macalintal's withdrawal seems to reinforce the administration's lack of interest in delaying the elections. And the Comelec is certainly unwilling to receive the ire of those against a No-el scenario by steadfastly claiming that the elections will push through and can fix the AES hiccups before Monday. After all, if the AES fails the fault cannot be solely attributed to it as it is merely implementing a law passed by Congress.

Postponement of not, the country may be getting itself into a catch-22 situation. If the elections proceed as scheduled, the probability of failure is not at all unlikely since no one knows what other glitchy creatures will emerge from the murky waters of an untested AES come Monday. To be sure, no one (whether Comelec, Smartmatic or even IT practitioners) has foreseen that the CF cards of the voting machines will fail to read and accurately count votes for other positions, despite Smartmatic's experiences in implementing an AES in other countries, such as in Curacao and Venezuela. And it is without a doubt that there will be areas where the voting machines will fail to transmit results electronically. In a country like ours where the IT infrastructure is not developed in several areas this is a given. In other words manual voting in lieu of automated voting will certainly take place. It's just a question of how much will be the extent of it.

If it comes to the point that manual voting becomes widespread, it is highly probable that the results will not be known after the term of the president and her constitutional successors ends. Consider this: the 80,000 clustered precincts around the whole country under the AES have resulted in about 600 to even 1,000 voters per precinct, compared to the about 200 voters per precinct in the past. If manual voting is resorted to in the event of computer problems, one could only imagine how long will the voting take place. Long after the legally mandated closing of voting has passed more voters would still be unable to vote, resulting in their disenfranchisement. To avoid this, declaration of failure of elections is the only viable option and in the meantime the clock is ticking, and power vacuum beckons.

It is not yet late for our leaders - administration and opposition alike - to come together and sit down for a contingency measure in the event of failure of election. They should as soon as possible provide for a transition government, a caretaker if you will, that will see the country through this first nationally-automated electoral exercise. President Macapagal-Arroyo should initiate this move to cast any doubt on her motives. Who knows, this might just be the legacy - a postitive one, that is - that she will leave when she steps down from office on June 30th. Until now, however, the president has yet to make any pronouncement on the eventuality of a failed election and the public is being kept in the dark as to what contingency measures she has.