Thursday, July 1, 2021
Students' free speech
Schools must act carefully on students’ off-campus speech, Supreme Court rules
By Katy Harriger, Wake Forest University and The Conversation
"x x x.
For decades, U.S. courts have ruled that public school students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” as the Supreme Court said in 1968.
In that case, Tinker v. Des Moines Independent School District, the justices held that high school students who were suspended for protesting the Vietnam War by wearing black armbands to school were protected by the First Amendment’s guarantee of free speech.
The standard the court set then, which has been narrowed and focused over the years, was that schools could only punish students for speech that “materially and substantially” disrupted the educational mission of the school. In several subsequent cases, about a student campaign speech full of sexual innuendo, a school newspaper article on teen pregnancy and a student-created sign saying “Bong Hits for Jesus”, the Supreme Court evaluated speech or expression that took place on campus or at a school-sponsored event. And in every case, the justices deferred to school authorities on their judgment of what disrupted their educational mission.
A case the court took up this year provided an opportunity for a wider view, specifically about what protections students might have for speech they engage in off-campus and away from school events, including online.
School districts and officials were anxious for guidance about the extent to which they can police social media speech by their students, especially with heightened concern about cyberbullying and threats of school shootings.
Free speech advocates were worried about the extent to which schools can extend their reach and control over students outside of school grounds and hours, especially given the amount of time teens spend on social media.
The June 23, 2021, decision in that case, Mahanoy v. B.L., is both a win and a loss for both sides. The 8-1 ruling, with Justice Clarence Thomas dissenting, did not give either side the clear rules they may have wanted.
It says schools are not forbidden from disciplining students in cases of severe harassment and cyberbullying that happen outside school. But it does warn schools that their attempts to regulate off-campus speech will be treated with less deference than they would get when addressing events on campus.
A quick synopsis
The case centered on Brandi Levy, who was a high school sophomore in 2017 when she failed to make the varsity cheerleading team at Mahanoy Area High School. She did make the junior varsity team, but expressed her disappointment at not making the top squad through a crude Snapchat post involving raised middle fingers and multiple uses of the F-word.
She made the post over the weekend, from a location outside the school campus. Several members of the cheerleading squad saw the post and reported it to officials, who suspended her from cheerleading for violating team-conduct rules. Levy’s parents sued on her behalf, arguing under the First Amendment that the team rules were overbroad and unconstitutionally vague, and that the school had no authority over her off campus speech.
The federal district court that first heard the case concluded that Levy’s post did not create the sort of substantial disruption to education that the Tinker ruling’s standard demanded. The Court of Appeals for the Third Circuit held that Levy’s speech happened off campus and outside a school-sponsored event, so Tinker’s standard didn’t apply.
The school district appealed to the Supreme Court, noting that the appeals court ruling conflicted with other rulings around the country that had applied the Tinker precedent to off-campus speech.
The justices’ review
The Supreme Court agreed with both lower courts that the school had violated Levy’s First Amendment rights. But it disagreed with the appeals court’s reasoning that the Tinker case would not apply to off-campus speech.
In the majority opinion, Justice Stephen Breyer wrote that the court “did not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.” At minimum, the ruling explains, schools must have the authority to regulate bullying, harassment, threats directed at staff or students, online learning and assignments and cybersecurity for school systems.
But the court also expressed reluctance to let schools very broadly regulate students’ off-campus speech, fearing the effect could be severe limits on student speech any time of day or night, in any location.
Instead, the justices said courts should be “more skeptical” of schools’ attempts to regulate off-campus speech than when handling on-campus expression.
The ruling also reminded schools of their obligation to protect the expression of unpopular opinion. Schools are “the nurseries of democracy,” Breyer wrote, and have an obligation to teach their students about the importance of free speech.
As a result of this reasoning, the court found that Levy’s Snapchat post was protected under the First Amendment. It was not substantially disruptive to the school environment, wasn’t targeted at anyone in particular, was not obscene, and did not constitute “fighting words” or incitement to violence.
Breyer did observe that Levy’s word choice was vulgar and perhaps juvenile in tone, but said “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
As a result of the ruling, students don’t lose their rights when they enter through the schoolhouse gate – but neither do school officials lose all of their disciplinary power once students leave.
[Understand what’s going on in Washington. Sign up for The Conversation’s Politics Weekly.]
Katy Harriger, Professor of Politics and International Affairs, Wake Forest University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
x x x."
See -
Schools must act carefully on students’ off-campus speech, Supreme Court rules (canadianinquirer.net)
Dual citizenship
A Filipino’s
guide to dual citizenship
By MICHELLE
ABAD
JUN 29, 2021
7:59 PM PHT
rappler.com
Dual
citizens can register to vote in Philippine national elections
For some
migrant Filipinos, the next step after acquiring permanent residency in their
new country is citizenship.
Some
countries’ laws require that once a person pledges allegiance to their flag, he
or she automatically loses any citizenship in a previous country.
Under the
Philippines’ Republic Act 9225, or the Citizenship Retention and Reacquisition
Act, natural-born Filipinos are allowed to retain or reacquire their Filipino
citizenship if they have been naturalized in other countries. The Filipino would
then hold two citizenships, and would be known as a dual citizen.
Among other
rights, dual citizens reacquire their right to vote in Philippine elections.
Since RA
9225 took effect in 2003, more than 150,000 had applied for dual citizenship
with the Bureau of Immigration (BI), according to 2018 data from the Commission
on Filipinos Overseas (CFO). Most of the applicants were Filipino-Americans.
Are you
looking to be a Filipino citizen again, maybe to vote in the next elections?
Here are the things you should know.
Who is
eligible for dual citizenship?
Dual
citizenship under RA 9225 is reserved for former natural-born Filipinos. As
defined by the 1987 Constitution, natural-born Filipinos are:
Persons who,
at the time of his/her birth, have at least one Filipino parent
Persons born
to a Filipino mother before January 17, 1973, who elected Philippine
citizenship upon reaching the age of majority (21 years old)
If you were
born outside of the Philippines, but your parents were Filipino citizens at the
time of your birth, then you are already a dual citizen by birth. You no longer
need to apply for dual citizenship under RA 9225.
Not eligible
for Philippine dual citizenship are persons who were naturalized Filipinos
before acquiring citizenship in another country.
What are my
rights as dual citizen?
Once you
acquire dual citizenship, you have the following rights in the Philippines:
Right to
vote in Philippine national and local elections (provided you also qualify
under the overseas voting law)
Right to own
land and property
Right to
engage in business
Right to
practice your profession (provided you are licensed or permitted by the Professional
Regulation Commission, or Supreme Court for lawyers)
Right to
travel bearing a Philippine passport
All rights
and privileges enjoyed by Philippine citizens (however, if you plan to run for
public office, you must renounce all foreign citizenship)
What are the
requirements for application?
The
Philippine post in your country of residence will require you to file your
petition for dual citizenship by filling up a form. The following documents
(original and photocopies) may be needed to retain or reacquire your Filipino
citizenship:
Birth
certificate issued by the Philippine Statistics Authority (PSA)
Latest
Philippine passport (if available)
Marriage
certificate (if married) issued by the PSA
With
annotation of divorce or annulment, if it applies
Decree or
judgment of dissolution of marriage (for divorced or annulled)
Death
certificate of spouse (for widowed individuals)
Naturalization
certificate
Foreign
passport
Recent
passport photographs with white background
Other
documents that would show the applicant is a former natural-born Filipino
You can
apply for PSA documents here. Philippine embassies or consulates may have more
specific requirements (like a certification from the Bureau of Immigration),
which you can check on their websites. Fees may apply for applying for
documents, as well as the application process itself.
Former
Filipino citizens would need to take an oath of allegiance before a duly
authorized Philippine official to get their citizenship rights back.
When
Filipinos take this oath, they are not required to renounce their allegiance to
any other country.
Can my
application include my family?
If you have
unmarried children below the age of 18, they can also derive Filipino
citizenship if you include them in your application.
If you have
a foreign spouse, they can become a naturalized Filipino citizen through
Commonwealth Act 473 or the naturalization law, but not through RA 9225.
Which
countries allow dual citizenship?
Not every
country has a policy that addresses dual citizenship directly. In the United
States, for instance, the law does not mention dual nationality or require a
person to choose one nationality over the other.
Meanwhile,
“places like China or Taiwan strictly construe citizenship – they only want
people to have one, so you have to give up other citizenship to get theirs,”
said Filipino-American immigration lawyer Jath Shao.
X x x.
Consult an
immigration lawyer or your Philippine consulate or embassy for further details
on whether you are eligible for dual citizenship in your current country.
X x x.
–
Rappler.com
See –
Saturday, May 22, 2021
Award of loss of earning capacity as a form of damages.
See - https://www.manilatimes.net/2021/01/07/legal-advice/dearpao/loss-of-earning-capacity/823912/
"x x x.
In Abrogar vs Cosmos Bottling Company and Intergames Inc. (GR 164749, March 15, 2017), ponencia of Chief Justice Lucas Bersamin, the Supreme Court held that loss of earning capacity may be awarded to the heirs of a deceased non-working victim simply because earning capacity, not necessarily actual earning, may be lost, viz:
“The RTC (Regional Trial Court) did not recognize the right of the petitioners to recover the loss of earning capacity of Rommel. It should have, for doing so would have conformed to jurisprudence whereby the Court has unhesitatingly allowed such recovery in respect of children, students and other non-working or still unemployed victims. The legal basis for doing so is Article 2206 (1) of the Civil Code, which stipulates that the defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death
“Indeed, damages for loss of earning capacity may be awarded to the heirs of a deceased non-working victim simply because earning capacity, not necessarily actual earning, may be lost. xxx.” (Emphasis supplied)
In Metro Manila Transit Corp. vs Court of Appeals (GR 116617, Nov. 16, 1998, 298 SCRA 495), penned by Associate Justice Vicente Mendoza, damages for loss of earning capacity were granted to the heirs of a third-year high school student of the University of the Philippines Integrated School, who had been killed when she was hit by a passenger bus as she crossed Katipunan Avenue in Quezon City. The High Court justified the grant in this wise:
“Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. Evidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession. In People v[s] Teehankee, no award of compensation for loss of earning capacity was granted to the heirs of a college freshman because there was no sufficient evidence on record to show that the victim would eventually become a professional pilot. But compensation should be allowed for loss of earning capacity resulting from the death of a minor who has not yet commenced employment or training for a specific profession if sufficient evidence is presented to establish the amount thereof.” (Emphasis supplied)
And in Pereña v[s] Zarate (GR 157917, Aug. 29, 2012),also written by Bersamin, the Court fixed damages for loss of earning capacity to be paid to the heirs of the 15-year-old high school student of Don Bosco Technical Institute killed by a moving train. The RTC and the Court of Appeals had awarded damages for loss of earning capacity computed on the basis of the minimum wage in effect at the time of his death. Upholding said findings, the Supreme Court opined:
“xxx, the fact that Aaron was then without a history of earnings should not be taken against his parents and in favor of the defendants whose negligence not only cost Aaron his life and his right to work and earn money, but also deprived his parents of their right to his presence and his services as well. xxx. Accordingly, we emphatically hold in favor of the indemnification for Aaron’s loss of earning capacity despite him having been unemployed, because compensation of this nature is awarded not for loss of time or earnings but for loss of the deceased’s power or ability to earn money.” (Emphasis supplied)
Thus, following the above-mentioned jurisprudence, you may claim the loss of earning capacity of your deceased daughter. The fact that she was still a student and unemployed should not negate her heirs’ right to claim damages in the form of loss of earning capacity precisely because compensation of this nature is awarded not for the loss of time or earnings but for the loss of the deceased’s power or ability to earn money.
For your guidance, the formula in computing the loss of earning capacity as discussed in People vs Reanzares (GR 130656, June 29, 2000), penned by Associate Justice Josue Bellosillo, is: loss of earning capacity = [2/3 x (80 – age of the deceased)] x 1/2 annual gross income.
Succinctly, the step-by-step guide to compute an award for loss of earning capacity dictates:
“(1) Subtract the age of the deceased from 80.
“(2) Multiply the answer in (1) by 2, and divide it by 3 (these operations are interchangeable).
“(3) Multiply 50 (percent) to the annual gross income of the deceased.
“(4) Multiply the answer in (2) by the answer in (3). This is the loss of earning capacity to be awarded.” (People vs Wahiman, GR 200942, June 16, 2015, Associate Justice Marvic Mario Victor Leonen’s concurring opinion).
x x x."
General Parlade has gravely undermined the Arbitral Award by calling it a “kangaroo ruling,” effectively repudiating his own Commander in Chief.
See - https://opinion.inquirer.net/139145/aid-and-comfort-to-the-enemy/amp?__twitter_impression=true
"x x x.
Aid and comfort to the enemy
By: Antonio T. Carpio
After the Philippines filed the landmark arbitration case against China on Jan. 22, 2013, China’s propagandists went overdrive on a public relations campaign, raising two issues to discredit the arbitration. First, the Philippines brought the case before the Permanent Court of Arbitration (PCA), which is not a court. Second, any arbitration case against China could not proceed without the consent of China. Both the Philippines and China have ratified the UN Convention on the Law of the Sea (Unclos) and are bound by its provisions.
The first issue — that the arbitration was filed in the wrong court—was totally laughable and was simply ignored by the Philippine legal team. Even China did not include this issue in the official Position Paper it submitted to members of the arbitral tribunal. As stated in the Philippines’ initiatory pleading called the Statement of Claim, the arbitration was filed under Article 281(1) of Unclos, which “allows recourse to the procedures provided for in Part XV, including compulsory procedures entailing binding decisions under Section 2 of Part VI.” There was no mention whatsoever of the Permanent Court of Arbitration. As every international lawyer worth his attaché case knows, the PCA is not a court but a registry that provides, for a fee, a physical venue for hearings, as well as administrative and secretarial services, to those wishing to hold their arbitrations in any of the various offices of the PCA worldwide.
The second issue — that China’s consent is needed for the arbitration to proceed — is also laughable because as every student of the Law of the Sea knows, Unclos provides for a compulsory arbitration. Every state that ratified Unclos gave its consent in advance, upon ratifying Unclos, to be sued under the compulsory dispute settlement mechanism of Unclos. This is embodied in the Unclos arbitration provision which states, “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
Last March 28, 2021, Lt. Gen. Antonio Parlade Jr., an incumbent officer of the Armed Forces of the Philippines known for red-tagging journalists, wrote in an online publication an opinion piece that repeated the long discredited Chinese communist propaganda against the Arbitral Award. General Parlade wrote, “The Aquino administration took a legal strategy and brought the matter to the Permanent Court of Arbitration xxx.” Because the Permanent Court of Arbitration is not a court, General Parlade called the Arbitral Award a mere “piece of paper” that embodied a “kangaroo ruling.” Thus, General Parlade even went further than the staid “null and void” appellation that China gave to the Arbitral Award. Like the Chinese communist propagandists, General Parlade also questioned why the arbitral tribunal decided the case without the participation of China. General Parlade asked, “What loophole in heavens name could have made all these possible without China and with only the Philippines participating?”
General Parlade even questioned why the Philippines failed to secure a ruling on the territorial dispute in favor of the Philippines. General Parlade wrote, “Was the Philippines awarded any territory? Nothing.” The Philippines would have been foolish to raise a territorial issue because Unclos regulates only maritime disputes, not territorial disputes. As the Philippines clearly stated in its Statement of Claim, “The Philippines does not seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both of them.” Had the Philippines raised a territorial issue, its arbitration case would have been dismissed outright by the arbitral tribunal.
President Duterte, in his speech before the UN General Assembly last Sept. 22, 2020, declared: “The Award is now part of international law xxx. We firmly reject attempts to undermine it.” General Parlade has gravely undermined the Arbitral Award by calling it a “kangaroo ruling,” effectively repudiating his own Commander in Chief. Last April 4, 2021, Defense Secretary Delfin Lorenzana demanded, “China should respect Philippine xxx sovereign rights over its Exclusive Economic Zone as defined by UNCLOS and affirmed by the Arbitral Award.” General Parlade is operating outside the chain of command, repudiating his Commander in Chief and ridiculing the Defense Secretary who is the President’s alter ego.
General Parlade has clearly given “aid or comfort” to Communist China, which has occupied and continues to seize Philippine territory and maritime zones in the West Philippine Sea.
acarpio@inquirer.com.ph
x x x."
The President must come clean on the terms of his “verbal agreement” with the Chinese.
See - https://opinion.inquirer.net/139537/why-chinese-fishermen-are-in-the-wps
"x x x.
Why Chinese fishermen are in the WPS
By: Antonio T. Carpio - @inquirerdotnet
Philippine Daily Inquirer / 04:08 AM April 22, 2021
China claims that part of the West Philippine Sea (WPS) enclosed by the nine-dash line is a traditional fishing ground of Chinese fishermen. That would make about 80 percent of the Philippine exclusive economic zone (EEZ) in the WPS a traditional fishing ground of Chinese fishermen. This Chinese claim, however, has been rejected in the Award of the arbitral tribunal at The Hague. The arbitral tribunal expressly ruled that in the EEZ all historic rights, which include traditional fishing rights, have been “extinguished” upon the effectivity in 1994 of the United Nations Convention on the Law of the Sea or Unclos. China has made the same traditional fishing rights claim in the EEZs of Indonesia and Vietnam, and both countries have forcefully rejected the Chinese claim on the same ground that there are no traditional fishing rights in their EEZs under Unclos.
Traditional fishing rights, under Unclos, can exist only in “archipelagic waters” which are waters landward of the archipelagic baselines. The waters of the Philippine EEZ in the WPS are not archipelagic waters. Under customary international law, traditional fishing rights may also exist in the territorial sea. This is why the Award declared that the territorial waters of Scarborough Shoal are the traditional fishing ground of Chinese, Vietnamese, and Filipino fishermen. In the EEZ, however, there are no fishing rights by other states without the express consent of the adjacent coastal state.
There is actually a more sinister reason why Chinese fishing vessels roam en masse in the WPS. In July 2019, following the ramming in Reed Bank of the Filipino fishing vessel F/B Gem-Ver by a steel-hulled Chinese fishing vessel, President Duterte gave a justification for the presence in Reed Bank of the offending Chinese fishing vessel. President Duterte disclosed to the nation for the first time that he had a “verbal agreement” with Chinese President Xi Jinping allowing Chinese fishing vessels to fish in Philippine EEZ in the WPS. “As far as I’m concerned, I’m the owner, and I’m just giving the fishing rights. Galit sila kung bakit ko daw pinapaisda,” Mr. Duterte told Pastor Apollo Quiboloy in his TV show. Presidential legal counsel Salvador Panelo declared that the President’s verbal agreement with President Xi was “legally binding.”
Sen. Leila de Lima filed a resolution seeking a Senate investigation on the “verbal agreement” between President Duterte and President Xi. The exclusive right of Filipinos to fish in their EEZ is a sovereign right which the President cannot waive or give away unless allowed in a treaty ratified by the Senate. The public also has the right to know how many Chinese fishing vessels are allowed to fish in the WPS, considering that China has the largest fishing fleet in the world numbering at least 200,000 vessels. The public also has the right to know what months of the year the Chinese can fish, and what is the allowable fish catch in tonnage they can take from Philippine EEZ. The public must also know how long the fishing agreement will last. Unfortunately, the Senate never conducted any hearing. By neglecting to investigate the President’s “verbal agreement,” the Senate allowed the President to continue with an unconstitutional act at the expense of the Senate’s constitutional power to ratify treaties.
The strong diplomatic protests filed by Foreign Secretary Teodoro Locsin Jr., as well as the strong warnings issued by Defense Secretary Delfin Lorenzana, are not being taken seriously by the Chinese because they know they have a fishing agreement with President Duterte. The President must come clean on the terms of his “verbal agreement” with the Chinese. The Chinese, using huge steel-hulled trawlers, are taking fish from Philippine EEZ at the expense of Filipino fishermen who only use wooden fishing boats with outriggers. The Filipino fishermen are complaining of drastically declining fish catch in the WPS. The Philippines is now importing galunggong from China, the same fish that Chinese fishermen scoop in the WPS.
After President Duterte leaves office on June 30, 2022, the new administration may decide to file an arbitration case to stop China from fishing in the WPS. The Chinese may invoke their “verbal agreement” with President Duterte, and present him, together with Panelo, as their star witnesses to prove the existence of the “verbal agreement.”
acarpio@inquirer.com.ph
x x x."
Read more: https://opinion.inquirer.net/139537/why-chinese-fishermen-are-in-the-wps#ixzz6vbH59E1O
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