Movie ban

Vietnam has prohibited the public exhibition of the comedic live-action “Barbie” film due to a scene showing China’s controversial Nine-Dash Line map in the South China Sea. Like the Philippines, Vietnam has disputed China’s territorial claims over the maritime zone. In 2016, the Arbitral Tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS) decided that China has no legal basis to claim historic rights to resources, in excess of the rights provided for by the Convention, within the sea areas falling within the “nine-dash line.” Citing that the featured map is an affront to our sovereignty, some senators have called for the banning of “Barbie” in the Philippines.

As a defender of freedom of expression and of the press, what is my take on this? I am not surprised by the Vietnamese government’s decision to cancel the movie’s domestic distribution. I have provided legal counsel to several bloggers from Vietnam who have been charged or jailed for libel and related cases. These online content creators have limited if not curtailed freedom to express their opinions and experiences compared to their Filipino counterparts. A 2022 Amnesty International country report revealed that Vietnam’s repressive Criminal Code and Cybersecurity Law have led to the arbitrary detention and prosecution of journalists and other individuals who are critical of the government.

The opposite is true in our country. We still enjoy the reputation of having the freest press in Asia, even though we have yet to decriminalize libel and its egregious variation which is cyber libel. I have championed this cause to protect the free speech and thought of every Filipino journalist and citizen.

For instance, I represented radio broadcaster Alexander Adonis who was convicted of libel in 2007. I brought the Adonis case before the United Nations Human Rights Committee. In its 2011 View on the Adonis vs. the Republic of the Philippines, the Committee found that our criminal libel law infringed Article 19 on Freedom of Expression under the International Covenant on Civil and Political Rights. Specifically, the Covenant provides individual freedom to seek, receive and impart ideas in the form of art or through any other media.

No-go zone for Barbie?

I previously wrote that prior restraint on expression – in this case, the possible non-release of “Barbie” on our shores – does not automatically mean that it is unconstitutional. It is because freedom of expression is not an absolute right. In Soriano vs. Laguardia (2009), the Supreme Court defined prior restraint as “official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.”

The High Court also ruled that “expressions by means of newspapers, radio, television and motion pictures come within the broad protection of the free speech and expression clause.” In a separate opinion, the late Chief Justice Reynato Puno stated that free speech is a preferred right. It is limited by equally fundamental freedoms enjoyed by other members of society. It may be subjected to reasonable regulation by the State in the face of higher public interest.

Nonetheless, it carries the heavy burden of unconstitutional presumption. In the Iglesia ni Cristo vs. Court of Appeals (1996), the Supreme Court stated that “deeply ensconced in our fundamental law is its hostility against all prior restraints on speech… Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows.” Justice Mendoza separately opined that “censorship may be allowed only in a narrow class of cases involving pornography, excessive violence and danger to national security. Even in these cases, only the courts can prohibit the showing of a film or the broadcast of a program.”

To overcome this presumption, the State (through the Senate or the Movie and TV Review and Classification Board) has to present and justify the higher public interest it wishes to shield from supposed grave and imminent harm. Is the “Barbie” film pornographic? Will it incite lawlessness or seditious acts? Can it be considered as a national security threat?

In international jurisprudence, privileged speech or expression that creates a clear and present danger to the public is actionable. The Supreme Court is clear on this doctrine. Formulated by the legendary jurist Oliver Holmes Jr., the clear and present danger doctrine protects printed or spoken words against prior restraint or subsequent punishment unless they bring about a substantial evil to the public, which the government is obligated to prevent (Soriano vs. Laguardia).

No effect on tribunal ruling

Again, the Hague Tribunal has already repudiated China’s historic rights to the South China Sea due to incompatibility with the UNCLOS-defined exclusive economic zones. The 1982 Convention, which establishes a legal regime for seas and oceans vis-à-vis the sovereignty of all States, did not adopt the protection for pre-existing rights to maritime areas. China also failed to provide concrete evidence that, historically, it exercised exclusive control over the South China Sea.

The “Barbie” movie classifies itself as comedy, which is rated PG-13 for suggestive references and brief language (Film Ratings). It is obviously not a political film that would lend credence to China’s Nine-Dash Line. “No sane country” would cite this movie as a source material to buttress its territorial claims over the waters, features and resources of a maritime zone. Furthermore, it has no bearing on the Philippine claims to the contested Spratly Islands. It will also not change the 2016 decision of the Arbitration Court.

I have yet to see the movie. But judging from the trailer, it is supposed to tickle our funny bones. It should also bring back happy memories for those who grew up with this iconic cultural figure. I do not think the filmmakers behind “Barbie” intend to trigger any negative reaction from the movie audience. If we ban or censor the film, we condone prior restraint on freedom of expression. The film has nothing to do with the South China Sea dispute. It is a legal issue that “Barbie” cannot resolve.