You are on page 1of 22

1

EH-307 MC

Case Concerning the freedom of Expression and Speech


of
TTV and Tanja Trotter

TTV and Tanja Trotter


Applicant
vs.
Turustein Republic
Respondent
Memorial of Respondent

Table of Contents
List of Abbrevations---------------------------------------------------------------------page 3
List of Authorities-----------------------------------------------------------------------page 4
Statements of Relevant Facts--------------------------------------------------------page 6
Statements of Jurisdiction-----------------------------------------------------------page 9
Statements of Arguments------------------------------------------------------------page 10
Arguments
I. The contention of the Applicant that they were deprieve of their rigth to
expression and speech when they were Prosecuted is unteanable, that the
government of Turustien Republic did not violate their right of expression and
speech.-------------------------------------------------------------------------------page 13
II. When it involves rights and reputations of others, the Government has the rigth
to criminalize such actions.--------------------------------------------------------page 15
III. National security concerns, it outweigth the freedom of expression and speech.
-------------------------------------------------------------------page 16
IV. The Republic of Turustien in promoting Public Safety, has the rigth to limit and
restrict freedom of expression and to prosecute individuals whom poses evil and
danger to public safety.------------------------------------------------------------page 17
V. The Turustien Government has the rigth to set forth limitations, to regulate and
to restrict the freedom of speech and expression if scuh would lead to abuse.
----------------------------------------------------------------------------------------------page 19
Prayer for Relief ----------------------------------------------------------------------page 21

List of Abbrevations
UN

United Nations

ICCPR

International Covenant on Civil and


Political Rigths

UDHR

Universal Declaration of Human Rigths

TR

Turustien Republic

UNFEC

Universal Freedom of Expression


Court

PM

Prime Minister

VPM

Vice-prime Minister

TTV

Turustien Television

ECHR

European Convention on Human Rigths

List of Authorities
Treatises and Declarations
The Universal Declaration of Human Rights
The International Covenant of Civil and Political Rights
The United Nations General Assembly
European Convention on Human Rigths

Constitution
The United States Constitution 1st amendment
The 1987 Philippine Constitution

United States Supreme Court Cases


Gitlow v. New York, 268 U.S. 652 (1925)
Dennis v. United States, 341 U.S. 494 (1951)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)

Philippine Supreme Court Cases


Ruiz vs. Gordon, G.R. No. L-65695 (1983)
Gonzalez v. Chairman Katigbak, G.R. No. L-69500 (1985)
Miscellaneous
Designing Democracy: What Constitutions Do and Democracy and the Problem of
Free Speech.
Author: Prof. Cass R. Sunstein, University of Chicago Law School

Statement of the Relevant Facts


The case took place within the Turustien Republic.

Turustien Republic is a country that has the population of 6.3 million people, it has
boundaries that covers about 1300km and compose of 27 islands. Its capital is
Lisparjana located between the country's biggest lakes. The country's main resource is
through its Tourism, agriculture, solar and wind power which boost the economic
machinery of the country.1

In 1990, Turustien was under the Federation of the People's Republic, however since
1958, after the Turustien Spring, a degree of self determined and national autonomy has
been developed. In 1991 Turustien became and Independent and democratic State. It was
a recognized state and become a member of the United Nations(UN )and in 19955 it
ratified the United Nation-Convention on Civil and Political Rigths(ICCPR). 2
The country's dominant political party is the PLP( Party for Liberty of the People) it was
1 Ibid
2 Ibid

the most influencial political party since the 1992 elections. The current President and
the Prime Minister and most of the government officials are under the PLP.

The government and the PLP have been criticised for influencing the mass media,
giving undue influence. In 2003, TTV, a new independent TV station was grandted a
license to broadcast and to operate in Turustien.3
In the month of May, 2015, TTV released an open forum in there website www.ttv.org
an article criticising the Turustien government by accusing the Prime minister and the
vice prime minister for involving and participating in a large scale organized fraud
which was derived from the fund given by the World Bank and the EU for sustainable
energy. Later on the same month TTV broadcast in its TV-news presented by Tanja
Trotter featuring a cartoon which criticised the government, the prime minister and the
vice-prime minister. On the said events, the Council for Media Ethics(CME) requested
that the TTV should broadcast an apology for showing a cartoon that was insulting and
which violated the rigth to privacy of the prime minister rand the vice-prime minister.
On june 23, 2003 a decision was rendered byy the court ordering the TTV to reveal the
identity of the authors of the article and the cartoon which was published and broadcast,
however TTV refused to communicate the information, because of such action which
was deemed as an obstruction of a judicial investigation, Tanja Trotter was sentenced to
be imprisoned for five days, an appeal was filed but such appeal was dismissed and she
3 Ibid

was incarcirated for five days.4


The crirminal charges against the content of the website and the news broadcast by TTV.
TTV and Tanja Trotter were convicted by the CFI (Court of First Instance) and were
ordered to pay fine and to suffer 8 days of imprisonment. The conviction was based on
five accusations. The judgement was affirmed by the Court of appeals, however it was
partly overruled by the Supreme Court based on Article 13 of the Turustien Constitution
and Article 19 of ICCPR. The Supreme Court expounded that the tv show and the
prrogram brrroadcast by TTV was related to political issues which is a public interest,
further more the court emphasized that freedom of expression and freedom of press is
guaranted by the Constitution and the ICCPR and such can be invoked and cannot be
violated by the government. 5

4 Ibid
5 Ibid

Statement of Jurisdiction

TTV and Tanja Trotter (Applicant) and Government of Turustien Republic (Respondent)
have submitted their arguements to the Universal Freedom of Expression Court special
chamber of the Universal Court of Human Rights. These arguements concern the rights
of freedom of expression and privacy in accordance with Articles 19 of the Universal
Declaration of Human Rights and Article 19 of the International Covenant of Civil and
Political Rigths. The Universal Freedom of Expression Court has jurisdiction in this
matter. When all national remedies have been exhausted the Universal Freedom Court
has the final jurisdiction as adjudicator to resolve the issues. Due to the failure to resolve
the matter with all available Turustien means the Honorable Court acquieres jurisdiction
to hear and settle the case.

10

Statement of Arguments

1. The Government of Turustien Republic did not violate Article 19 of the Universal

Declaration of Human Rigths and also Article 19 of the International Covenant of


Civil and Political Rigths in prosecuting and convicting TTV and Tanja Trotter.
The prosecution and conviction of TTV and Tanja Trotter is in confirmity with the
law of Turustien and also to the International Law which Turustien is a signatory,
as such it did not infringe and violate the applicant's rigth to expression and
speech. As provided by the Universal Declaration of

Human Rigths and

International Covenant of Civil and Political Rigths, every person, whether


Natural or Juridical, has the rigth of speech and expression, that such they can
enjoy and invoke. However such rigth is not absolute in nature, and such is
restricted. Such limitation and restriction was enacted to prevent abuse.
International law declares freedom of expression to be the rule. Limitations are
the exception, permitted only to protect:
the rights or reputations of others
national security

11

public order
public health
morals.
Limitation is legitimate if it falls within the very narrow conditions defined in the
three-part test in Article 19(3) of the ICCPR. 6Also Article 19 of the Universal
Declaration of Human Rigths shares the same limitation with Article 19 of the
International Covenant of Civil and Political Rigths. 7
2. The news and cartoon aired and broadcast by TTV directed to the prime
minister and the vice-prime minister was a violation to the limitations and
restriction set forth by the ICCPR and UDHR on. Such that it violated the rigths
and reputations of the prime minister and the vice-prime minister. It is indeed that
freedom of expression is a rigth both granted by national and international law,
but such rigth cannt b eused to malign others.
3. The actions of TTV and Tanja Trotter also violates the National Security of
Turustien Republic, where it showed and published news without any proof that
directed towards the government, as such it lead to a mass demonstration, which
cause a widespread of rallies, commotions, and civil disobedience in Turustien.
4. That the Action of Turustien government in using its police power to prosecute
6 Article 19, Paragraph 3 of the ICCPR
7 Article 19 of Universal Declaration of Human Rigths

12

TTV and Tanja Trotter is valid, as such it did not violate any law or the rigths of
the accused. The applicant's action in filing their differences that their rigth on
freedom of speech was violated and later they invoke that its the people right to be
informed that their action is justified in broadcasting the said TV news and
cartoon. However the government has the rigth to regulate and sanction such
action that deemed to breach the limitations set forth by the law, as such its also
the law that gives rigths and such the law itself is also the one that scrutinize any
actions that deemed to be unjust and unlawful, as such the Government of
Turustien is exercising its police power to regulate and promote the law.
5. the applicant's action in posting an website, basically a political forum which is
directed to the government and to the Prime minister and the Vice-prime minister
without identifying or giving any concrete and exact information, details and the
credibility of the source, as such action signifies Libel. The freedom of speech and
expression does not promote sch act, as such it was set as limitation to prevent it
and to avoid people using it to malign others. The Ruling of the Court and the
actions of the government is indeed valid.

13

Arguments

I. The contention of the Applicant that they were deprieve of their rigth to

expression and speech when they were Prosecuted is unteanable, that the
government of Turustien Republic did not violate their right of expression
and speech.

It is indeed that people has the rigth and has the freedom of

expression and speech that the law provides and gurantees, however such rigth is
not absolute and has certain limitation and restriction. Furthermore, measures
which are prescribed by law, proportionate, and necessary, do not infringe
freedom of speech and expression. Some constituion, freedom of expression and
speech is guranteed and protected, under the United States Constituion 1 st
amendment :
it prohibits the making of any law respecting an establishment of religion,

14

impeding the free exercise of religion, abridging the freedom of speech,


infringing on the freedom of the press, interfering with the right to peaceably
assemble or prohibiting the petitioning for a governmental redress of
grievances.8

Also in the context of the Philippine 1987 Constituion, Article III, Section 4 states that:
Section 4. 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 the redress of their grievances.9
Both Intenational law and Constitutional mandate is not absolute in nature, it also
provides certain limitations and restriction about freedom of speech and expression.

II. When it involves rights and reputations of others, the Government has the

rigth to criminalize such actions.


The ICCPR and the UDHR provides that signatory state shall promote and protect
the Freedom of speech and Expression of every people and such rigth cannot be
violated without any reason or unjust cause, however both treaties also provide
limitations, and one of this limitation is that freedom of speech cannot be invoke
8 1st amendment, United States Constitution
9 Article III, Section 4 of the 1987 Philippine Constituion

15

nor used to malign the rigths and reputations of others.


It is provided in Article 19(3) of the International Covenant of Civil and Political
Rigths that such cannot be used to destroy one's reputation and dignity. 10Also in
the context of the United States Consititution, First amendment, the Freedom of
speech has certain limitation and not absolute.11
In the case New York Times Co. v. Sullivan, The United States Supreme Court held
that :
the First Amendment protects the publication of all statements, even false
ones, about the conduct of public officials except when statements are
made with actual malice with knowledge that they are false or in reckless
disregard of their truth or falsity.

12

Also in another case, The United States Supreme Court in Curtis Publishing Co.
v. Butts held that:
while news organizations were protected from liability when printing
allegations about public officials under the Supreme Court's New York
Times Co. v. Sullivan decision (1964), they may still be liable to public
figures if the information they disseminate is recklessly gathered and
10 Article 19, Paragraph 3 of the ICCPR
11 1st amendment, the United State Constituion
12New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

16

unchecked.13
Thus the contention of TTV and Tanja Trotter has no merit, the action of the
Turustien government in prosecuting the accused is valid.

III. National security concerns, it outweigth the freedom of expression and

speech.
The international law and most constituion adopt that the freedom of speech is
essential to a democratic country that each signatory state of the UN, the UDHR,
and the ICCPR must confirm with this duty, however there is a limitation, that the
National Security of the State can outweigth the Freedom of expression and
speech, that in times where an individual uses such rigth to affect the national
security, such action is prohibited. The United State 1 st amendment tackles that
national security is above and can impugn the freedom of expression and speech
when it affects the nation's security and order.
As such in the case of Gitlow v. New York, the United States Supreme Court held

13Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)

17

that:
a state may forbid both speech and publication if they have a tendency to
result in action dangerous to public security, even though such
utterances create no clear and present danger. The rationale of the
majority has sometimes been called the "dangerous tendency" test. The
legislature may decide that an entire class of speech is so dangerous that
it should be prohibited. Those legislative decisions will be upheld if not
unreasonable, and the defendant will be punished even if her speech
created no danger at all.14
Also in the case of Dennis vs. United States, the United States Supreme Court
held that:
that Dennis did not have the right under the First Amendment to the
United States Constitution to exercise free speech, publication and
assembly, if the exercise involved the creation of a plot to overthrow the
government.15
In the case at bar, the action of TTV and Tanja Trotter in broadcasting the said
political forum and cartoon which created a mass rally, demonstration, and public
disorder in Turustien is unlawful due to the fact that it affects Turustien

14Gitlow v. New York, 268 U.S. 652 (1925)


15Dennis v. United States, 341 U.S. 494 (1951)

18

Public and national security, that it incites riots and demonstration, as such the
government can act to suppress such and has the rigth to question and prosecute.

IV. The Republic of Turustien in promoting Public Safety, has the rigth to limit

and restrict freedom of expression and to prosecute individuals whom poses


evil and danger to public safety.
Intenational law also provides restriction on freedom of speech in regards to
public safety. In US and Philippine Constitution, such ristriction was adopted and
followed that it promotes the general welfare of the state and the people, as such
the government has the rigth to set scrutiny deemed to avoid abbusing the rigth of
expression and speech. 16
In the case of Gonzalez v. Chairman Katigbak, the Philippine Supreme Court held
that:
to determine whether freedom of expression may be limited is the clear and
present danger of an evil of a substantive character that the State has a right to
prevent. Such danger must not only be clear but must also be present. There
should be no doubt that what is feared may be traced to the expression
complained of. The causal connection must be evident. Also, there must be
reasonable apprehension about its imminence. The time element cannot be
16 Ibid

19

ignored. Nor does it suffice if such danger be only probable. There is the
requirement of its being well-nigh inevitable.17
Also in the case of Ruiz vs. Gordon, the Supreme Court of the Philippines held
that:
It is a fundamental principle, long established, that the freedom of speech and
of the press, which is secured by the Constitution does not confer an absolute
right to speak or publish, without responsibility, whatever one may choose, or
an unrestricted and unbridled license that gives immunity for every possible
use of language, and prevents the punishment of those who abuse this freedom.
Reasonably limited, it was said by story in the passage cited, this freedom is an
inestimable privilege in a free government; without such limitation, it might
become the scourge of the Republic.18
The action of TTV and Tanja Trotter violates the exception on the exercise of freedom of
speech and expression, as such it leads to harm the public safety of the people and the
State where it lead to mass riot and demostration, clearly they cannot be clothed with the
rigth.
V. The Turustien Government has the rigth to set forth limitations, to regulate and
to restrict the freedom of speech and expression if scuh would lead to abuse.

17 Ruiz vs. Gordon, G.R. No. L-65695 (1983)


18 Gonzalez v. Chairman Katigbak, G.R. No. L-69500 (1985)

20

The European Convention on Human Rigths laid down in Article 10, paragraph 2 that:
The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary.19

In the book of Designing Democracy, it explained that:


There should be no ambiguity on the point: free speech is not an absolute.
The government is allowed to regulate speech by imposing
neutral rules of property law, telling would-be speakers that they may not
have access to certain speech outlets. But this is only the beginning.
Government
is permitted to regulate unlicensed medical advice, attempted
bribery, perjury, criminal conspiracies (Lets fix prices!), threats to
19European Convention on Human Rigths laid down in Article 10, paragraph 2

21

assassinate
the president, criminal solicitation (Might you help me rob this
bank?), child pornography, false advertising, purely verbal fraud (This
stock is worth a hundred thousand dollars), and much more.20
As such the actions of Turustien Government is valid for it can regulate and even limit
such rigth as long as it is deemed for the purpose of justice that it prevents individual to
use it for evil and wrong doings and to impugn others.

20Designing Democracy: What Constitutions Do and Democracy and the Problem of Free Speech.

22

PRAYER FOR RELIEF


For the foregoing reasons, the government of Turustien Republic respectfully requests
this Honorable Court to adjudge and declare as follows:
1. It upholds the conviction of TTV and Tanja Trotter for violating the exceptions of
freedom of speech by maligning the rigths and reputation of the Prime Minister
and the Vice-prime Minister.
2. To uphold that the action made by the Government of Turustien Republic in
outweighting the freedom of expression and speech due to the National Security
of the State is valid and lawful
3. That the Government of Turustien Republic has the rigth to enact law in order to
limit, restrict, and regulate the freedom of expression and speech as it is deemed
necessary to promote public safety and to criminalize such action deemed to point
evil and danger to the society.