Kronos
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[Private] On Free Speech and Post Suppression on the Regional Message Board
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A question... are all justices allowed to ask questions in the R4R thread, or is only the moderating justice allowed to ask, or are we just not allowed to ask questions at all? Reason I ask is because a component of Dreadton's brief bothers me. In it, they state...
... but yet they provide no examples of this in the brief. Are we expected to go looking for those examples? I'd rather have the brief filer provide those examples.
So how are we feeling about this one? My initial take on this case is that it’s going to come down to addressing the IC/OOC divide. Our laws are written from an IC perspective. Our admin team handles OOC issues, including taking action against players who cross a line OOC. This is the RMB, so normally NS moderation handles the OOC role, but they, like our own admin team, only take action when it’s incredibly serious. We also have mods who handle more minor OOC issues offsite, but what do we have for gameside? BC and suppression. I don’t think it can be the case that we can tie people’s hands behind their backs when moderating the RMB because an IC law says someone can get away with it. The post in question wasn’t IC. I think this case lives or dies on this question. Of course we should consider case law for when it’s appropriate to curtail speech, but from memory I don’t believe any of those cases apply to speech like what we saw here.
The Court has previously established limits to speech when it’s in the greater interest. The more political and IC that speech is, the harder it is to draw that line.
The Court has previously established limits to speech when it’s in the greater interest. The more political and IC that speech is, the harder it is to draw that line.
Kronos
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I realized as well while analyzing the briefs thoroughly that there is a clear distinction between them. The brief submitted by Zyvet focuses on the IC/Legal perspective while the brief submitted by Dreadton argues from the OOC/Moderation perspective. From an OOC perspective I am of the belief the case is very straightforward. A post was made on the RMB that can be argued to be against the RMB Guidelines (which to my surprise both briefs did not account for in their arguments), NS Rules, and TNP Community Guidelines. Moderation used their best judgement and suppressed the post. Looking at the context of the post, I believe suppression was a reasonable action to take from an OOC point of view. However, what I have noticed in this case while reading the briefs and the cited case law is that previous rulings of the Court have more than immortalized the freedom of speech ICly, to the point that now it can be argued that suppression of any posts on the RMB is an infringement on speech. I have developed quite the internal conflict; while I am obliged to respect Moderation and trust their actions are in the best interests of TNP, I am also obliged to stick as close to past case law and precedent as I can, as established in the ruling on the scope of the Court's powers. The issue here, in my mind, is not the OOC context of the action. I do not think moderation is at fault for the suppression OOCly. I think precedent is at fault, and I am of the belief that previous rulings of the Court on the freedom of speech have made it more difficult for future Courts. Precedent in this case is not helping distinguish the IC/OOC divide, it's blurring it. I do not believe the moderation action was an infringement on free speech, but I put blame on previous Courts for making it seem like it is.
In the ruling for On the Constitutionality of Prohibiting Sedition, it was held that the freedom of speech can only be infringed in cases of an actual emergency. Bill of Rights Section 11 was cited to support this. I strongly disagree. The latter half of Section 11 says that government officials are authorized to act in any reasonable manner that is "consistent as practicable with the pertinent provisions of the Constitution". My interpretation of this piece of the Section is that it means consistent as practiced with the relevant provisions of the Constitution. This means that in times of emergency upon obtaining the consent of the nations, government officials are authorized to act in any way that is similar or identical to how they would have acted outside the actual emergency. So, if a Delegate has the authority to regulate and suppress posts on the RMB during an emergency, they also have the authority to regulate and suppress posts on the RMB while not in an emergency. This reasoning causes the ruling in Sedition to make no sense. I do not believe that excerpt of the ruling should continue to be precedent of the Court.
In the ruling for On the Delegate's Authority to Staff the Executive Branch, the Court struck a previous ruling from 2015 concerning the suppression of posts on the RMB. Their reasoning for striking the ruling was that the suppression of speech is inherently harmful. With precedent saying suppression of speech is inherently harmful, it can be argued that all RMB suppressions since when that ruling was made (2019) were inherent infringements of free speech. This cannot be the case, because Dreadton brought up that the Court has never second guessed moderation. This tells me that a suppression on the RMB has never been undone by the Court. The Court cannot undo things without a case. So that also tells me that there have been no cases about RMB suppressions with the exception of the previous now struck ruling from 2015 and the one before us today. RMB suppressions then, more often than not, are not commonly thought about as infringements on free speech. Suppressing posts on the RMB serves the purpose of encouraging a healthy and welcoming environment. Encouraging a healthy and welcoming environment is in the region's best interests. It is the legal responsibility of government officials per Section 2 of the Bill of Rights to act in the best interests of the region. Therefore, it is the Delegate's legal responsibility to encourage a healthy and welcoming environment on the RMB, in part by suppressing posts that conflict with that environment as laid out in the various rules and regulations. The precedent established in the Executive Staff ruling, by saying the suppression of speech is inherently harmful and a violation of free speech, conflicts with the Delegate's legal responsibility through the Bill of Rights to act in the region's best interests on the RMB and leaves them vulnerable to frivolous suits. Thus, I do not believe that excerpt of the ruling should continue to be precedent of the Court either.
In the ruling for On the Constitutionality of Prohibiting Sedition, it was held that the freedom of speech can only be infringed in cases of an actual emergency. Bill of Rights Section 11 was cited to support this. I strongly disagree. The latter half of Section 11 says that government officials are authorized to act in any reasonable manner that is "consistent as practicable with the pertinent provisions of the Constitution". My interpretation of this piece of the Section is that it means consistent as practiced with the relevant provisions of the Constitution. This means that in times of emergency upon obtaining the consent of the nations, government officials are authorized to act in any way that is similar or identical to how they would have acted outside the actual emergency. So, if a Delegate has the authority to regulate and suppress posts on the RMB during an emergency, they also have the authority to regulate and suppress posts on the RMB while not in an emergency. This reasoning causes the ruling in Sedition to make no sense. I do not believe that excerpt of the ruling should continue to be precedent of the Court.
In the ruling for On the Delegate's Authority to Staff the Executive Branch, the Court struck a previous ruling from 2015 concerning the suppression of posts on the RMB. Their reasoning for striking the ruling was that the suppression of speech is inherently harmful. With precedent saying suppression of speech is inherently harmful, it can be argued that all RMB suppressions since when that ruling was made (2019) were inherent infringements of free speech. This cannot be the case, because Dreadton brought up that the Court has never second guessed moderation. This tells me that a suppression on the RMB has never been undone by the Court. The Court cannot undo things without a case. So that also tells me that there have been no cases about RMB suppressions with the exception of the previous now struck ruling from 2015 and the one before us today. RMB suppressions then, more often than not, are not commonly thought about as infringements on free speech. Suppressing posts on the RMB serves the purpose of encouraging a healthy and welcoming environment. Encouraging a healthy and welcoming environment is in the region's best interests. It is the legal responsibility of government officials per Section 2 of the Bill of Rights to act in the best interests of the region. Therefore, it is the Delegate's legal responsibility to encourage a healthy and welcoming environment on the RMB, in part by suppressing posts that conflict with that environment as laid out in the various rules and regulations. The precedent established in the Executive Staff ruling, by saying the suppression of speech is inherently harmful and a violation of free speech, conflicts with the Delegate's legal responsibility through the Bill of Rights to act in the region's best interests on the RMB and leaves them vulnerable to frivolous suits. Thus, I do not believe that excerpt of the ruling should continue to be precedent of the Court either.
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This isn't a full opinion, but I wanted to get my early thoughts into the debate. Forgive me if I repeat some of my points. None of this should be taken as stuff to actually put on a decision write-up.
Dreadton's brief hinges on his statement that "[t]he Delegate is de facto moderator of the Regional Message Board, Regional Nation, and World Factbook Entry for the North Pacific." But, under what governing authority does the Delegate have that responsibility? Dreadton seems to suggest that it comes from TNP Community Guidelines and Forum Administration. I believe Dreadton has it completely wrong.
It even says in the TNP Community Guidelines that "[t]he Community Rules apply to platforms belonging to The North Pacific. This includes the forum (public areas, private areas, and private messages) and all affiliated Discord servers (public channels, private channels, and voice chats)." It does not include the gameside region itself, because that is not a TNP property. That is a NationStates property. Our government currently holds it, but, if it hits the fan, our government can lose it.
Dreadton also cites Article 7.2 of the constitution, but, in my opinion, misinterpreted it. It reads "Enforcement of forum Terms Of Service and moderation policies will be the responsibility of forum administration." (emphasis mine) The government, specifically the Regional Assembly, is granting forum administration the authority to act to moderate the forum. But, the government, if it feels forum administration is not up to snuff, can, as Madjack once suggested as a result of inaction against Whole India, lift and shift everything over to a new forum with a new forum administration (and probably result in new discord servers being established as well).
Now, was the post a violation of the NationStates rules? We don't know. Nobody filed a Getting Help Request on it, and NationStates moderation was not involved. The argument that it was a violation seems to hinge on the opinion of those who are not NationStates moderators but who try to predict what the moderators would do. Was the post a violation of TNP Community Guidelines? Irrelevant, per above. Those only apply to The North Pacific properties, not NationStates properties. Was the Regional Officer/Delegate acting under the Delegate’s authority as de facto moderator? Well, that's what's really up for debate, and that's why I was disappointed that Dreadton didn't cite specific examples of NationStates moderators delegating their authority to act on a potentially rule-breaking post to regional communications officers. If a NationStates moderator is going to delegate their authority to take action like that, then what I'm reading is that NationStates moderators don't feel the post violated their rules, and are leaving it to the regional officers to decide whether the post broke their rules. NationStates moderators will delete posts that have been suppressed if it was actionable on their end.
As far as RMB Guidelines are concerned, who made those? The government, as part of the law that reads "17. The Serving Delegate may regulate the Regional Message Board as they see fit." The delegate can change those guidelines.
I suppose the following is the most important paragraph in my thoughts thus far, considering that it is the most in line with in-character reasoning:
"18. Such regulations may not prohibit speech which is in the context of TNP politics."
The post was not in the context of TNP politics, so it does leave the post open to prohibition. Or does it? Does it conflict with Article 2 of the Bill of Rights? There are examples even in real life where free speech doesn't necessarily mean free speech. For instance, in the US, it doesn't include the right to incite imminent lawless action, to make or distribute obscene materials, to burn draft cards, etc. So, it's certainly reasonable that free speech in our case does not include the right to say things that run afoul of NationStates rules. But, was the post against NationStates rules? Again, we don't know, because nobody GHRed it. It could have been an attempt to incite and inflame the LGBT community. Is the fact that it could have been seen that way enough to say that "yes, the post was flamebaiting?" It could have been someone just expressing their opinion that there are only two genders, which I think anywhere with true free speech would declare that as protected speech and opinion. However, we do have to remember that NationStates itself is not really a free speech area. It's Max Barry's "Father Knows Best" state.
Kronos, you mention that the Court has never second guessed moderation. I guess now I am. Specifically, I'm second guessing whether the delegate is a moderator. My opinion is that they are not. If the post was flamebaiting, and the Delegate or whoever absolutely knew it was, it should have been GHRed and taken out of the in-character realm, where I believe the government and the regional officers reside, and moved to the out-of-character realm, where the NationStates moderators reside.
Early thoughts on this before I move on to precedent and past cases?
Dreadton's brief hinges on his statement that "[t]he Delegate is de facto moderator of the Regional Message Board, Regional Nation, and World Factbook Entry for the North Pacific." But, under what governing authority does the Delegate have that responsibility? Dreadton seems to suggest that it comes from TNP Community Guidelines and Forum Administration. I believe Dreadton has it completely wrong.
It even says in the TNP Community Guidelines that "[t]he Community Rules apply to platforms belonging to The North Pacific. This includes the forum (public areas, private areas, and private messages) and all affiliated Discord servers (public channels, private channels, and voice chats)." It does not include the gameside region itself, because that is not a TNP property. That is a NationStates property. Our government currently holds it, but, if it hits the fan, our government can lose it.
Dreadton also cites Article 7.2 of the constitution, but, in my opinion, misinterpreted it. It reads "Enforcement of forum Terms Of Service and moderation policies will be the responsibility of forum administration." (emphasis mine) The government, specifically the Regional Assembly, is granting forum administration the authority to act to moderate the forum. But, the government, if it feels forum administration is not up to snuff, can, as Madjack once suggested as a result of inaction against Whole India, lift and shift everything over to a new forum with a new forum administration (and probably result in new discord servers being established as well).
Now, was the post a violation of the NationStates rules? We don't know. Nobody filed a Getting Help Request on it, and NationStates moderation was not involved. The argument that it was a violation seems to hinge on the opinion of those who are not NationStates moderators but who try to predict what the moderators would do. Was the post a violation of TNP Community Guidelines? Irrelevant, per above. Those only apply to The North Pacific properties, not NationStates properties. Was the Regional Officer/Delegate acting under the Delegate’s authority as de facto moderator? Well, that's what's really up for debate, and that's why I was disappointed that Dreadton didn't cite specific examples of NationStates moderators delegating their authority to act on a potentially rule-breaking post to regional communications officers. If a NationStates moderator is going to delegate their authority to take action like that, then what I'm reading is that NationStates moderators don't feel the post violated their rules, and are leaving it to the regional officers to decide whether the post broke their rules. NationStates moderators will delete posts that have been suppressed if it was actionable on their end.
As far as RMB Guidelines are concerned, who made those? The government, as part of the law that reads "17. The Serving Delegate may regulate the Regional Message Board as they see fit." The delegate can change those guidelines.
I suppose the following is the most important paragraph in my thoughts thus far, considering that it is the most in line with in-character reasoning:
"18. Such regulations may not prohibit speech which is in the context of TNP politics."
The post was not in the context of TNP politics, so it does leave the post open to prohibition. Or does it? Does it conflict with Article 2 of the Bill of Rights? There are examples even in real life where free speech doesn't necessarily mean free speech. For instance, in the US, it doesn't include the right to incite imminent lawless action, to make or distribute obscene materials, to burn draft cards, etc. So, it's certainly reasonable that free speech in our case does not include the right to say things that run afoul of NationStates rules. But, was the post against NationStates rules? Again, we don't know, because nobody GHRed it. It could have been an attempt to incite and inflame the LGBT community. Is the fact that it could have been seen that way enough to say that "yes, the post was flamebaiting?" It could have been someone just expressing their opinion that there are only two genders, which I think anywhere with true free speech would declare that as protected speech and opinion. However, we do have to remember that NationStates itself is not really a free speech area. It's Max Barry's "Father Knows Best" state.
Kronos, you mention that the Court has never second guessed moderation. I guess now I am. Specifically, I'm second guessing whether the delegate is a moderator. My opinion is that they are not. If the post was flamebaiting, and the Delegate or whoever absolutely knew it was, it should have been GHRed and taken out of the in-character realm, where I believe the government and the regional officers reside, and moved to the out-of-character realm, where the NationStates moderators reside.
Early thoughts on this before I move on to precedent and past cases?
Interestingly enough, I find myself in agreement with Kronos and Zyvet on one thing: the sedition ruling should be revisited at least in part. It's way too absolute and simplistic, especially with subsequent rulings. Obviously we do not believe there can be no limits at all to free speech. However, the argument that since they can suppress in emergencies and their actions in emergencies are supposed to act identically to non-emergencies does not mean that suppressing posts is ordinary. It may be the case that they are trying to act as closely to normal times as possible and suppression is not the most extreme option they have, but it may still go beyond normal scope and only be okay because of the emergency. I don't believe emergencies are the only time they should be able to suppress, I was simply saying I don't follow your logic on the point you made.
Suppression can be inherently harmful, as the Court said in the staffing case, but not preclude all suppression. As we already know, there can be limits to these things and limiting what someone can do can be said to harm them to some extent. That doesn't mean the harm itself is bad - sometimes you have to balance out limits on one person for the benefit of everyone else. Someone being banned harms them, but we wouldn't stop bans just because of that - there's other context to consider. I wouldn't put a ton of weight on Dreadton's claim about second guessing moderation, though I do agree I cannot think of a time the Court ever considered whether suppression was appropriate in the abstract or in particular cases. I do not believe we have to overturn any part of the staffing decision. They do not say suppression cannot ever be done, they simply dismiss the argument the prior Court made in saying that casual suppression was no big deal because a couple of people were messing around. That was not compelling context or reasoning for suppression, so it is inconsistent with our understanding of limits that do exist. When it comes to that case, I am actually quite interested in Elu's dissent, because I find myself sympathetic to his reasoning that the Court kind of took an unusual approach with that ruling. I do not think we have to be concerned with saying if something is a violation of free speech or not for fear of prejudicing a potential future criminal trial, but that ruling means we have to at least consider the merits of that point of view, especially since an older ruling was struck down in part along those lines.
Sil is correct that the community guidelines do not apply to the RMB. I also do not know our GAs to specifically and strictly enforce those guidelines, though I suppose in deciding which posts cross lines and need to be addressed, they can take inspiration from the. They certainly do not enforce them the way the admin team or moderators do however, because the RMB is the domain of NS moderation.
I don't think I agree that Dreadton needs to cite examples of NS mods delegating posts. There's plenty of examples shared after filing GHRs, both in our own server and across GP, of mods giving snarky replies saying posts were not actionable under their rules. This is well known. Such evidence would actually bolster the applicant's claim in a way, because in an OOC sense the NS mods are often very permissive with what gets reported. Instead, they simply bounce it back to the community that reported the post to handle themselves. And I am not sure I am prepared to say that we have no recourse in such situations, because that post was not in character. It wasn't RP, it had nothing to do with answering issues or joining the WA, or subscribing to Flemingovinism. Taking another look at the staffing case, the examples uses by the Court were all clearly IC. The old sedition case was about riling up people against TNP's government. The speech contemplated by the Court was always IC in nature, never OOC. The Bill of Rights doesn't make as much sense if you read it in an OOC context. If you did, how could we have community guidelines enforced by an admin team off-site? Why does the admin team get to ignore the Bill of Rights that supposedly extends to things outside of game terms? If you rule that the Bill of Rights applies to only IC speech, then there's no way this suppression can violate the Bill of Rights. Clearly the Legal Code already works this way.
Of course, I can see limits to this. Maybe people post on the RMB about hating pineapple on pizza and someone decides to suppress their posts, citing the fact that since they are talking about non-game stuff, they can suppress them if they feel like it. Speech can often blur lines - pizza can exist in the game. Trans people too. And even making a ruling where we draw this distinction is dicey, because this is an IC body and we can't and shouldn't make pronouncements about OOC things. Whatever our response is has to be IC.
Clearly we have to recognize that the IC/OOC divide is crucial to this case, and that we can only tackle it from an IC perspective. Here's what we know before deep diving on old rulings: freedom of speech has been limited before, in particular instances where it was deemed better to limit some speech than to allow it to run wild. The Legal Code explicitly restricts the delegate from interfering with political speech related to TNP, and prior rulings have done the same. There are many cases where posting may blur the lines between IC and OOC. The Court does not consider nonsense, silly, or harmless suppression to be acceptable.
Here's the key takeaway for me from Dreadton's brief: the suppression and border control powers are the only tools TNP's government has for regulating the gameside community in TNP. In the absence of NS mod action, that is the only moderation we get. NS mods will only act when absolutely necessary, so we have to pick up the slack. This does not make officials with those powers equal to offsite admins - they are very much IC, but sometimes have to clean up OOC stuff, and without written guidelines equivalent to our community guidelines for offsite properties. I can see how that would make the Delegate a defacto moderator on the RMB - strictly speaking, that's the role he functions in when utilizing those powers gameside. Ruling too broadly in this case would severely hurt our ability to serve that function, and would be detrimental to the region. Keep in mind how often the Court takes care to avoid doing this - plenty of case law showing that. That's relevant too even if we say something shouldn't be done a certain way.
I believe we have to give the Delegate the same leeway and benefit of the doubt that has been given to the Delegate and the Speaker in past cases. The law, including the Bill of Rights, has broad language for acting in the region's best interests, and we can set aside Madjack suppressing this post from the kind of thing the Court previously allowed in the case that was overturned. You know what this case is going to end up being called? "On the Regulation of the Regional Message Board." Because that is what is at stake here. Gutting suppression powers or even coming up with workable guidelines for when suppression is appropriate would impact the regulation of the RMB, which is what the Legal Code was concerned with outlining with the provision cited in the r4r. This is bigger than deciding whether suppressing a post counts as violating free speech.
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I agree that the IC/OOC divide is crucial, but where to we draw the line?
For instance, the petitioner's first suppressed line, "Oh yeah, and there are only 2 genders," which was seen as out-of-character flamebaiting, could have also been written "The government of the Militarized State of Torslia rejects the Madjackian position that there are more than two genders." The former reads out-of-character, but is that just from laziness in not writing out the full thing in more in-character type language? The latter certainly reads more "in-character", but is really any better? It's still going to provoke a response, and it certainly still hits a subject of out-of-character discussion that Madjack is very passionate about. I think the second suppressed line, "The only person that should be eligible for an 'X' drivers license..." is more clearly out-of-character in nature, given the picture reference to a characterized X with eyes.
Or, how about this example...
1. "It's time for a new government! Endorse me so I can overthrow Madjack!" -- Doesn't break NS rules, but is it in-character or out-of-character? If it was something like "It's time for Torslia to claim its rightful place as delegate," that leans more in-character, but what if their reasoning was "I don't want someone who's pro-LGBT leading the region?" Well, now there's an out-of-character reasoning behind it, even if the original post doesn't explicitly say that.
2. "I'm tired of the government being forum based. RMB only! Endorse me to help me overthrow the forumites!" -- Now we're getting something that's could be seen as more out-of-character driven, someone not happy with everything being offsite forum based, but could it still technically be in-character, since we're talking about a government overthrow?
3. "All Forum Admins are FASCISTS. Help me overthrow the forumite government so we can ban them!" -- Now we have a rule break (Trolling/Baiting/Gloating), but again, I think the IC/OOC line is blurry. Overthrowing the government is an in-character thing, but the user's reasoning has clearly crossed into out-of-character mode. Does it take getting to that point before we say that it's not protected speech?
For instance, the petitioner's first suppressed line, "Oh yeah, and there are only 2 genders," which was seen as out-of-character flamebaiting, could have also been written "The government of the Militarized State of Torslia rejects the Madjackian position that there are more than two genders." The former reads out-of-character, but is that just from laziness in not writing out the full thing in more in-character type language? The latter certainly reads more "in-character", but is really any better? It's still going to provoke a response, and it certainly still hits a subject of out-of-character discussion that Madjack is very passionate about. I think the second suppressed line, "The only person that should be eligible for an 'X' drivers license..." is more clearly out-of-character in nature, given the picture reference to a characterized X with eyes.
Or, how about this example...
1. "It's time for a new government! Endorse me so I can overthrow Madjack!" -- Doesn't break NS rules, but is it in-character or out-of-character? If it was something like "It's time for Torslia to claim its rightful place as delegate," that leans more in-character, but what if their reasoning was "I don't want someone who's pro-LGBT leading the region?" Well, now there's an out-of-character reasoning behind it, even if the original post doesn't explicitly say that.
2. "I'm tired of the government being forum based. RMB only! Endorse me to help me overthrow the forumites!" -- Now we're getting something that's could be seen as more out-of-character driven, someone not happy with everything being offsite forum based, but could it still technically be in-character, since we're talking about a government overthrow?
3. "All Forum Admins are FASCISTS. Help me overthrow the forumite government so we can ban them!" -- Now we have a rule break (Trolling/Baiting/Gloating), but again, I think the IC/OOC line is blurry. Overthrowing the government is an in-character thing, but the user's reasoning has clearly crossed into out-of-character mode. Does it take getting to that point before we say that it's not protected speech?
Sil, I think I could have done a better job of explaining this in my post, but you’re touching on a crucial point I tried to make. The lines blur and that’s especially true on the RMB. And something I didn’t cover much in my post but is evident when you play in other corners of this game: IC itself has a few shades, one of which is virtually indistinguishable from OOC in how the player utilizes it - often the player says and does things that are explicitly about the game and in game terms (IC) but is not strictly speaking playing a character - they are themselves in their capacity as someone online playing a game, not themselves in a real life context. But obviously IC can also refer to explicit role play and very obviously fictional characters adding another layer in front of the person behind the screen. When we speak of the IC divide, we are technically considering these shades of IC.
Any line we draw should consider the impact of the speech on the community itself and any players impacted by it directly. It should consider the motive and the goal of the official limiting the speech. It should consider in practical terms how limiting their actions actually are. And it should be mindful that our limits should be concerned explicitly with IC matters and framed in an IC way. This question is crucial to how we respond here but I don’t think we can actually codify an explicit IC/OOC divide because in an IC sense that wouldn’t make a lot of sense.
The examples you cited were entirely unactionable. Even the post explaining someone wants to oppose the delegate for being too pro-LGBT wouldn’t get suppressed. How do I know that? Because they are explicitly targeting TNP politics. Even the forum admin stuff is couched in gameside vs. offsite stuff. And we have a ruling that shut down a sedition ban, so considering this isn’t even really good sedition, I fail to see how it’s actionable. When the speech harms individuals or seeks to stir the pot and pick fights, that’s when our officials have to step in to maintain the peace, to moderate the discussion. Your examples could possibly construed as someone picking a fight, but speech has a long leash in this region, so any mitigating factors would (or should) give officials pause before taking action on the speech.
That does remind me of something I neglected to cover in my last post. The sedition law forbade seditious speech. Suppression is not a law forbidding speech, it’s an action hiding specific speech on the RMB. Is this a difference worth highlighting? I think so. It’s different when a law making something impossible is passed than an official taking a specific concrete action. MadJack’s post about using the suppression power outlined a policy that would suppress a specific type of speech (transphobic posts), so it’s important to distinguish that policy from the idea of suppression more generally. MadJack also has a policy that he wants to deescalate and handle troublemakers as much as possible prior to banning them so TRR doesn’t have to deal with them. This is not something every delegate does. Suppression helps with avoiding such bans. Strictly speaking, the law allows him to be much harsher than he typically is, and when he draws a line, it’s still on a policy that emphasizes suppression. I think the government’s restraint in the use of their powers is part of the full picture and also ought to be considered. It goes back to giving them the benefit of the doubt and taking seriously the assertion that their actions are for the best interests of the community.
Any line we draw should consider the impact of the speech on the community itself and any players impacted by it directly. It should consider the motive and the goal of the official limiting the speech. It should consider in practical terms how limiting their actions actually are. And it should be mindful that our limits should be concerned explicitly with IC matters and framed in an IC way. This question is crucial to how we respond here but I don’t think we can actually codify an explicit IC/OOC divide because in an IC sense that wouldn’t make a lot of sense.
The examples you cited were entirely unactionable. Even the post explaining someone wants to oppose the delegate for being too pro-LGBT wouldn’t get suppressed. How do I know that? Because they are explicitly targeting TNP politics. Even the forum admin stuff is couched in gameside vs. offsite stuff. And we have a ruling that shut down a sedition ban, so considering this isn’t even really good sedition, I fail to see how it’s actionable. When the speech harms individuals or seeks to stir the pot and pick fights, that’s when our officials have to step in to maintain the peace, to moderate the discussion. Your examples could possibly construed as someone picking a fight, but speech has a long leash in this region, so any mitigating factors would (or should) give officials pause before taking action on the speech.
That does remind me of something I neglected to cover in my last post. The sedition law forbade seditious speech. Suppression is not a law forbidding speech, it’s an action hiding specific speech on the RMB. Is this a difference worth highlighting? I think so. It’s different when a law making something impossible is passed than an official taking a specific concrete action. MadJack’s post about using the suppression power outlined a policy that would suppress a specific type of speech (transphobic posts), so it’s important to distinguish that policy from the idea of suppression more generally. MadJack also has a policy that he wants to deescalate and handle troublemakers as much as possible prior to banning them so TRR doesn’t have to deal with them. This is not something every delegate does. Suppression helps with avoiding such bans. Strictly speaking, the law allows him to be much harsher than he typically is, and when he draws a line, it’s still on a policy that emphasizes suppression. I think the government’s restraint in the use of their powers is part of the full picture and also ought to be considered. It goes back to giving them the benefit of the doubt and taking seriously the assertion that their actions are for the best interests of the community.
Kronos
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With what has been said previously about taking into consideration the many factors that play into whether or not a post is suppressed on the RMB brings us back to the crucial fact that context matters. This is supported by the Legal Code as it limits the context of speech in its own way by saying speech that can be considered to be within the scope of TNP politics cannot be suppressed. This also means that speech outside of those bounds is in question as we can very much see from this case. I'd like to run off a point that Pallaith mentioned about past cases giving the Delegate and the Speaker leeway. Those cases in particular which were cited in the Zyvet brief questioned whether or not the Delegate or the Speaker had the power to do something in those various circumstances and the Court ruled that they did every time. Those cases, especially the ones concerning the Speaker, were about the discretionary powers of those positions. The Court has ruled rather literally in its cases regarding the discretionary powers of the Speaker sparking a tone similar to "at their discretion means at their discretion. If it is not written in RA procedures and it is within the Speaker's discretion to do it, then they can do it". The Delegate was put into a similar position, where in Executive Staff the Court ruled that the citizen who was fired from the FA ministry, while they were removed for speaking things in foreign and local places, their freedom of speech was not infringed because their speech was not silenced, they were removed for contradicting with the Delegate's vision for FA, which the court ruled the Delegate has the discretionary power to do.
In the context of this case, and with moderating the RMB, I am not aware of the existence of guidelines or principles that help GAs and the Delegate discern which posts get suppressed and which do not. We have RMB Guidelines which lay the foundation of RMB behavior, and that's it. From this, it is my point of view that when it comes to suppressing posts, those who suppress are using a discretionary power based on their best judgement depending on the rules and regulations that exist. The Court ruled in the cases of the Speaker that the Speaker's discretionary power is a political matter, not a legal one, thus ruling that issues that come up as a result of the Speaker's discretionary power should not go before the Court. I would say the same applies to the Delegate as well, though the law says issues involving the RMB are subject to review so I will refrain from suggesting we go that route.
I am inclined to agree with Sil's disagreement with Dreadton's argument that those with suppression power are moderators of the game simply because they moderate over NS space. They do not compare to NS Moderation because their power is confined to TNP rather than globally. However, according to Legal Code Section 7.3 Clause 1, authorities may eject or ban a nation for violating NS Rules. So while our regional moderation authorities are not as close to the NS Rules as NS Mods and Admins are, they still have the legal authority to enforce ejections and bans for when/if NS Rules are broken. This perspective favors the suppressing of the post even more. While violators of NS Rules may be subject to summary ejection or banning, keyword being "may", in this case Petitioner's post, if they did violate NS Rules, they were not ejected or banned. They were suppressed instead. This is an example of the Delegate exercising Legal Code Section 7.3 Clause 17; the Delegate moderated the RMB as they saw fit.
In the context of this case, and with moderating the RMB, I am not aware of the existence of guidelines or principles that help GAs and the Delegate discern which posts get suppressed and which do not. We have RMB Guidelines which lay the foundation of RMB behavior, and that's it. From this, it is my point of view that when it comes to suppressing posts, those who suppress are using a discretionary power based on their best judgement depending on the rules and regulations that exist. The Court ruled in the cases of the Speaker that the Speaker's discretionary power is a political matter, not a legal one, thus ruling that issues that come up as a result of the Speaker's discretionary power should not go before the Court. I would say the same applies to the Delegate as well, though the law says issues involving the RMB are subject to review so I will refrain from suggesting we go that route.
I am inclined to agree with Sil's disagreement with Dreadton's argument that those with suppression power are moderators of the game simply because they moderate over NS space. They do not compare to NS Moderation because their power is confined to TNP rather than globally. However, according to Legal Code Section 7.3 Clause 1, authorities may eject or ban a nation for violating NS Rules. So while our regional moderation authorities are not as close to the NS Rules as NS Mods and Admins are, they still have the legal authority to enforce ejections and bans for when/if NS Rules are broken. This perspective favors the suppressing of the post even more. While violators of NS Rules may be subject to summary ejection or banning, keyword being "may", in this case Petitioner's post, if they did violate NS Rules, they were not ejected or banned. They were suppressed instead. This is an example of the Delegate exercising Legal Code Section 7.3 Clause 17; the Delegate moderated the RMB as they saw fit.
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I suppose I should have thought about the post subject matter a little bit more before using those examples. I'm aware that they were political in nature and shouldn't be suppressed, but the point was to try to define where in-character and out-of-character begins and ends. It's drawing that line where I seem to be struggling to agree with you.
The lawfulness of Kasto and MJ's actions are not what I'm questioning. I'm questioning the constitutionality of that law.
Kronos
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How would you argue against the constitutionality of said law? I have had minor considerations of my own, but not about the constitutionality. Where would you say the conflict is?
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I think my hold up is whether I really buy the whole in-character / out-of-character divide, and I suppose I just land on a different side of the fence than the two of you. If we took the Constibillocode at face value, without IC/OOC considerations, and without consideration for NationStates rules, it would become a case where the message was suppressed because it was an unpopular and offensive opinion. But, I think it would still be protected. The fact that the legal code *only* explicitly restricts the suppression of speech related to TNP politics implies that the guidelines *can* restrict other topics, which I do not think is compatible with the Bill of Rights.
I do recognize that there are some situations that obviously need communications officers. Spamming, for example, is a case where we can't be running to the NS mods all of the time if we have a tool to deal with it. I wouldn't consider spamming to be speech, just disruptive action. But when we get to something subjective like flamebaiting, I don't find it appropriate for a communications officer who was not selected for the purpose of being a moderator to make that judgment call.
Anyways, I'm getting the feeling I'm not going to be able to justify my points without ignoring the IC/OOC divide, so perhaps the two of you could start with writing an opinion, and I'll just read it and decide whether to join or dissent from it.
This goes back to my opinion that the delegate, vice delegate, and anyone with communications powers are not automatically moderators. From my time in RP Moderation, we know that moderators should never be chosen by popular vote, yet it seems as though that's exactly what is happening by circumstance.
I do recognize that there are some situations that obviously need communications officers. Spamming, for example, is a case where we can't be running to the NS mods all of the time if we have a tool to deal with it. I wouldn't consider spamming to be speech, just disruptive action. But when we get to something subjective like flamebaiting, I don't find it appropriate for a communications officer who was not selected for the purpose of being a moderator to make that judgment call.
Anyways, I'm getting the feeling I'm not going to be able to justify my points without ignoring the IC/OOC divide, so perhaps the two of you could start with writing an opinion, and I'll just read it and decide whether to join or dissent from it.
Sil, I was also thinking that the next step should be a draft opinion, because until this starts taking some kind of shape, we don’t know how it will all fit together.
We have no way to select mods or admins to regulate the RMB. The game handles that. Nevertheless, we have to have someone cover NS mod slack, and enforce the closest thing to the offsite guidelines we can have gameside.
We can’t contemplate the law without taking NS rules into consideration - those rules bind us regardless of what our own region’s rules are. And because we have to consider them, we by definition have to contemplate some things that are very much not IC in nature. Sometimes we have enforced NS rules without getting NS moderators involved. That would be acting as OOC moderators, but that doesn’t make us NS moderators. The two lines blur gameside in a way we manage to avoid for the most part offsite, and that’s why I believe we have to reckon with this even if it complicates the simplicity of letting the Bill of Rights be absolute on free speech.
And because that line has to be navigated, and we have to recognize times when the Bill of Rights doesn’t apply, I am convinced we need to overturn the sedition ruling. It essentially said that the Bill of Rights said freedom of speech is absolute and can only be curtailed in emergencies. That isn’t even how we understand it today - we understand that there are limits in some circumstances and we’ve previously addressed them. This has basically come up with government actions and not laws as in the case of the sedition law, but the point still stands. If we insist on the absolute nature of that protection, I think we would risk overturning many more rulings not to mention our current understanding of the limits of speech.
I’ll start working on a draft opinion for us to consider.
We have no way to select mods or admins to regulate the RMB. The game handles that. Nevertheless, we have to have someone cover NS mod slack, and enforce the closest thing to the offsite guidelines we can have gameside.
We can’t contemplate the law without taking NS rules into consideration - those rules bind us regardless of what our own region’s rules are. And because we have to consider them, we by definition have to contemplate some things that are very much not IC in nature. Sometimes we have enforced NS rules without getting NS moderators involved. That would be acting as OOC moderators, but that doesn’t make us NS moderators. The two lines blur gameside in a way we manage to avoid for the most part offsite, and that’s why I believe we have to reckon with this even if it complicates the simplicity of letting the Bill of Rights be absolute on free speech.
And because that line has to be navigated, and we have to recognize times when the Bill of Rights doesn’t apply, I am convinced we need to overturn the sedition ruling. It essentially said that the Bill of Rights said freedom of speech is absolute and can only be curtailed in emergencies. That isn’t even how we understand it today - we understand that there are limits in some circumstances and we’ve previously addressed them. This has basically come up with government actions and not laws as in the case of the sedition law, but the point still stands. If we insist on the absolute nature of that protection, I think we would risk overturning many more rulings not to mention our current understanding of the limits of speech.
I’ll start working on a draft opinion for us to consider.
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In case this wasn't already brought up, there is one thing I think we need to be careful about. Remember this from On the Delegate's Authority to Staff the Executive Branch...
Basically, don't go after Kasto and MJ and decide directly whether or not their actions were lawful or not. Instead, focus on the constitutionality of the laws they used to execute their actions.
Basically, don't go after Kasto and MJ and decide directly whether or not their actions were lawful or not. Instead, focus on the constitutionality of the laws they used to execute their actions.
Kronos and I have actually been mulling this over throughout our consideration of this case. I feel it has to be considered, and we might as well touch on that now because the ruling is absolutely going to want to include that precedent when it looks at that decision. I am definitely sympathetic to Elu's point that the question being asked in that case was whether or not the government's action was constitutionally acceptable. The petitioner alleged his free speech was violated, just as the petitioner is in our case. We do not have to conclude (nor should we) whether or not Kasto and MadJack committed a crime by doing what they did. Intent after all is crucial to that, and the evidence in a trial would cover that. But it is difficult to address this r4r if we do not address the actions and instead talk around it. The previous Court did just this, leading to Elu's dissent. At the very least we should restate that reasoning and emphasize we are not seeking to determine if they violated the law, only if their actions were predicated on a law that was constitutional. Obviously we could also overturn that decision and argue Elu was right all along, and trust his reasoning that possibly confirming their actions were unconstitutional would not automatically seal their fate in a criminal case (though SillyString's point about that having a huge impact on that case is obviously true). I suspect we're not inclined to overturn that one, so we'll just have to maneuver around this the same way the past Court did.
Sil, you mentioned you would be looking at precedent. I'm seeing all the cases mentioned in the briefs, and also adding the citizenship oath case. I'm also citing the NS rules and community guidelines, though I'm going to be looking at different portions of them - Dreadton obviously cited the community guidelines without appreciating that they clearly state how they do not apply to the RMB, while he cited flambaiting in NS rules and didn't appreciate that its definition does not actually meet the scenario we're considering. Basically, flamebaiting needs to target a specific user, and unless I missed something, the petitioner was not doing that. What Dreadton is alleging is actually that he was trolling, since that doesn't have the specific target aspect. It would be helpful to know what other cases you think apply here or should be cited. This can also include government policy that touches on this area - Kronos mentioned to me that he felt the RMB guidelines should have been cited, so we should take a look at those as well.
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Kronos
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I'm not supportive of maneuvering around the question. As we saw in Executive Staffing the Court was approached with a simple question by the Peitioner, "were my rights violated?" The Court decided not to give an answer because it was the opinion of the Court, mainly SillyString, that with the way the Constitution was worded at that time, it was unconstitutional to review actions, because the word actions was not in the Constitution's Article 4 Clause 1 at the time. And that is how the Court ultimately ruled; they did not answer the question directly on whether or not the Petitioner's rights were violated, but they took the liberty and opportunity in front of them to go into detail on the powers of the Executive over its ministers and their conduct at home and abroad. I sympathize more with Elu's dissenting opinion; Since the Court officially stated they would not answer the question, everything that comes after that declaration can be argued to have no place in Court precedent, as Elu did. I will not go so far as to say we should consider announcing that a massive portion of that decision is overruled because, at the end of the day, what was written in that opinion, while it completely avoids answering the Petitioner's question, still acts as a useful guide and reminder of the executive's powers when it comes to their discretionary actions. However, I will note that I am less inclined to consider that bulk portion of Executive Staffing and the secondary precedent that it set; the precedent that the Court does not have to directly answer questions pertaining to rights violations. I'd prefer if this Court did not follow that example. We should not try to "work around" the question. Our decision will not determine whether or not the suppression of this post was a crime, because that is not what the Petitioner is asking. Criminal charges then, based on this decision, would not hold up. It will determine whether or not suppressing this post in particular was a violation of Petitioner's free speech and it will explain why or why not. Seems simple enough when observed from that angle. I see no reason to have this case before the Court to begin with if we're simply going to repeat the questionable actions of a previous Court. If the Court under Executive Staffing would not, or could not, answer the question, they should not have taken it. The same could be said for us if we choose to follow in their footsteps.
Interesting. I would note that any regulation of the RMB is subject to judicial review - that is what the petitioner is seeking, judicial review of that action. His grounds are that the suppression violated his freedom of speech. I’m not sure how judicial review of such actions would be possible if we took the position that the question cannot be answered by the Court. If we do call into question that conclusion of the past Court, that doesn’t actually nullify the rest of the decision - it was rightly pointed out that dicta isn’t a concept this Court follows, so the rest of the decision is still binding and valid, even if you believe that the Court shouldn’t have gone as far in its response as it did.
It’s fair to say, though, that we still have to consider the consequences of outright saying if the action was unconstitutional or not - it impacts a potential criminal trial. It does, that’s not disputable. It doesn’t declare the officials guilty or innocent, but having a Court decision that says the thing they did is or isn’t constitutional will also carry a lot of weight in that case. Much in that decision was made of a r4r not being a good venue for gathering facts to help determine the answer to that question, though strictly speaking, the evidence would be about determining intent and discussions around the actions, necessary for determining guilt if you want to know if the official was being a malicious actor or knowingly flouting the law, but not useful for determining if an action is constitutional - that requires a review of past precedent and law, and we’re already doing that.
I’m currently amused that someone complaining about a suppressed post is threatening two past rulings with being overturned, something I don’t think I’ve ever seen the Court do. To be fair, we don’t have to overturn it per se, just decide to answer the question and reject the argument that we shouldn’t. I see that but being overturned or disregarded, and don’t see the need to overturn the rest. It’s useful for our purposes in this review, albeit as a comparison point since speech of government officials is a different animal.
I began my work on the draft opinion last night. I’ve worked out the portion of the decision on standing and I’ve also written a section overturning the sedition ruling while explaining how that case should have been resolved under the framework I’m building with this ruling - that is, freedom of speech can sometimes be curtailed for good reasons. The section in progress is on the authority to suppress posts - I’ve cited the ruling Zyvet did on the speaker’s authority to end debate, as well as the ruling on altering the citizenship oath, as these are examples of restricting speech for the proper function of government and a civilized community. Similar reasoning can be applied to regulating the RMB. I will also distinguish the type of speech suppressed from the type of speech most fiercely protected, which is TNP political speech.
After that, I’m considering a section on moderation more generally - this will allow me to cover how NS rules interact with our laws and how the community’s safety and well-being are needed to be protected by the powers the game offers to the delegate in the absence of an admin team that can apply community guidelines. This will require the most finesse to get right. I will also note that if we applied the same standard as the executive staffing ruling and avoided deciding if the suppression violated free speech or not, we could simply point out that trolling and flamebaiting (though I believe this constitutes trolling, not flamebaiting as Dreadton alleged) are actionable as violations of NS rules and that’s a bit beyond the scope of freedom of speech. Why is it exactly? Well I think it necessarily has to be, because NS moderators are certainly going to be inclined to enforce site rules and we can’t be more permissive than they are. Whether the post actually counts as a violation of NS rules may be in question, but that’s partly why we have to rule. The delegate never claimed that was why the suppression took place, though I would note if enforcing NS rules a ban was on the table and he didn’t do that.
I think I’m rambling at this point so I’ll cut this short. Just some more thoughts to add to the mix.
It’s fair to say, though, that we still have to consider the consequences of outright saying if the action was unconstitutional or not - it impacts a potential criminal trial. It does, that’s not disputable. It doesn’t declare the officials guilty or innocent, but having a Court decision that says the thing they did is or isn’t constitutional will also carry a lot of weight in that case. Much in that decision was made of a r4r not being a good venue for gathering facts to help determine the answer to that question, though strictly speaking, the evidence would be about determining intent and discussions around the actions, necessary for determining guilt if you want to know if the official was being a malicious actor or knowingly flouting the law, but not useful for determining if an action is constitutional - that requires a review of past precedent and law, and we’re already doing that.
I’m currently amused that someone complaining about a suppressed post is threatening two past rulings with being overturned, something I don’t think I’ve ever seen the Court do. To be fair, we don’t have to overturn it per se, just decide to answer the question and reject the argument that we shouldn’t. I see that but being overturned or disregarded, and don’t see the need to overturn the rest. It’s useful for our purposes in this review, albeit as a comparison point since speech of government officials is a different animal.
I began my work on the draft opinion last night. I’ve worked out the portion of the decision on standing and I’ve also written a section overturning the sedition ruling while explaining how that case should have been resolved under the framework I’m building with this ruling - that is, freedom of speech can sometimes be curtailed for good reasons. The section in progress is on the authority to suppress posts - I’ve cited the ruling Zyvet did on the speaker’s authority to end debate, as well as the ruling on altering the citizenship oath, as these are examples of restricting speech for the proper function of government and a civilized community. Similar reasoning can be applied to regulating the RMB. I will also distinguish the type of speech suppressed from the type of speech most fiercely protected, which is TNP political speech.
After that, I’m considering a section on moderation more generally - this will allow me to cover how NS rules interact with our laws and how the community’s safety and well-being are needed to be protected by the powers the game offers to the delegate in the absence of an admin team that can apply community guidelines. This will require the most finesse to get right. I will also note that if we applied the same standard as the executive staffing ruling and avoided deciding if the suppression violated free speech or not, we could simply point out that trolling and flamebaiting (though I believe this constitutes trolling, not flamebaiting as Dreadton alleged) are actionable as violations of NS rules and that’s a bit beyond the scope of freedom of speech. Why is it exactly? Well I think it necessarily has to be, because NS moderators are certainly going to be inclined to enforce site rules and we can’t be more permissive than they are. Whether the post actually counts as a violation of NS rules may be in question, but that’s partly why we have to rule. The delegate never claimed that was why the suppression took place, though I would note if enforcing NS rules a ban was on the table and he didn’t do that.
I think I’m rambling at this point so I’ll cut this short. Just some more thoughts to add to the mix.
I want to get us started on discussing this, so here is my draft opinion thus far. It's missing an explicit conclusion, and the actual adjudication of the case is missing (my reasoning is unfinished), but I have already stayed up too late at this point. Let me know what you guys think.
The Court took into consideration the inquiry filed [here] by DiamondComodo
The Court took into consideration the legal brief filed [here] by Zyvetskistaahn
The Court took into consideration the legal brief filed [here] by Dreadton
The Court took into consideration the relevant portions of the Constitution of The North Pacific.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
The Court took into consideration the relevant portion of the NationStates Rules.
The Court took into consideration the relevant portion of the TNP Community Guidelines.
The Court took into consideration the RMB Guidelines.
The Court took into consideration prior rulings by the Court here,
here,
here,
here,
here, and here.
The Court opines the following:
On Standing
The petitioner was the one directly impacted by the government actions and policies that the Court has been asked to review. The petitioner’s posts were suppressed twice, once by Kastonvia, the Lead Gameside Advocate, and once by MadJack, the Delegate. The petitioner was also informed that subsequent posts of that nature, that is, transphobic posts, would be suppressed as well. There is no question of proper standing in this case.
On the Court’s Prior Ruling on the Delegate’s Authority to Staff the Executive Branch
This is not the first time the Court has been asked to review government action that the petitioner alleges violated their freedom of speech. We previously ruled in On the Delegate’s Authority to Staff the Executive Branch that we could not directly answer the question of whether the delegate violated the petitioner’s freedom of speech, so as not to prejudice any future criminal trial, and because the information needed to determine such a question would be best gathered and considered through the criminal trial process. We appreciate that any potential criminal case would undoubtedly take into account this ruling’s determination that MadJack and Kastonvia engaged in unconstitutional actions – as it should. But we must echo Justice Eluvatar from his dissent in that case. The facts that must be discovered and considered in such a criminal trial would aim to prove more than whether or not the actions committed were unconstitutional and would be concerned with intent and possible deliberate malfeasance. Gross Misconduct is a very different charge than simply identifying whether or not some act is unconstitutional and looks beyond case law and prior precedent and how the two are applied to what is readily available to us when examining the question brought by the petitioner.
The Court was right to note that a request for review is not the proper venue to consider evidence intended to prove a case at a criminal trial, or to consider the questions relevant to that trial. But that does not preclude this Court from answering the question posed by DiamondComodo, nor does it preclude this Court from examining evidence relevant to determining strictly whether a constitutional violation occurred. The context in which we view what is provided in briefs, or what is publicly available to us, is very different from the context of a criminal trial. The Constitution charges us with answering his query and determining the legality of the actions of government officials. The possibility of a future criminal trial does not make free speech queries immune from this Court’s consideration. As Justice Eluvatar noted, if this Court believes it cannot consider a question, then it should not answer that question. And the Court erred in not doing so back then. We hereby overturn this portion of the ruling.
The ruling’s conclusion, that the challenged action was permissible and consistent with the Constitution, is still correct, and still useful in navigating the question before us in this review. This time, it is the limitations of free speech and the situations where the government may potentially limit it as it relates to Regional Message Board posts that is at issue. As with that prior ruling, we will consider the government’s authority in this area in a broader sense, and what limits there may be to that authority, but we will come to a conclusion as to whether the action questioned went beyond those limits.
On the Authority to Suppress Posts
The Legal Code grants broad authority to the Delegate to “regulate the Regional Message Board as they see fit” in its onsite authority section. The petitioner asks the Court to review the use of the suppression power, which is a function of regional officer permissions to help moderate the Regional Message Board in The North Pacific. This message board is located squarely in space controlled not by The North Pacific, but by NationStates itself, and is what constitutes the core and almost entirety of the region’s gameside community. Suppression is included in what the Legal Code refers to as Regional Powers, which also includes border control, or the ability to eject and ban nations from the region. All of these powers are controlled and assigned by the Delegate and may be utilized in executing the Delegate’s regulation of the Regional Message Board. Suppression is a tool successive delegates have made available to every member of their cabinet since the creation of regional officers, and is the primary method of moderating the Regional Message Board, particularly given the Legal Code’s strict limitations to the use of border control powers. This power is not new, and predates the provisions added to the onsite authority laws for regional officers, but its use has spread dramatically since then. The Court recognizes that the Delegate has explicit authority to use these Regional Powers, including suppression. However, the onsite authority provisions also establish a right for judicial review of this regulation, which suggests that despite having the authority to use these powers, the Delegate may nevertheless use them improperly, and in ways contrary to the Bill of Rights.
On the Constitutionality of Suppression of Posts
The Court has ruled twice on the use of suppression power before. In our ruling in On the Delegate’s Authority to Staff the Executive Branch, this Court overturned a previous ruling, On the Suppression of Posts on the Regional Message Board, as we did not accept the reasoning that because the suppression of posts was a result of friendly banter, there was no harm done. In fact, we ruled that suppressing posts is inherently harmful, as suppressing free speech in any way is inherently harmful. But this Court has also ruled, repeatedly, that there are sometimes situations where speech may be restricted. What these rulings have in common is that speech is limited when allowing unfettered free speech would cause greater harm to the community or the proper functioning of the government. Free speech concerns must be balanced against other rights, and residents are not free to say whatever they want regardless of the context. We ruled in On the Speaker’s Power to End Debate that ending debate would necessarily restrict the free speech of citizens, but was nevertheless permitted because those free speech rights must be balanced against maintaining order in the Regional Assembly and fostering civilized debate, and reiterated that position in On the Use of the Speaker’s Power to End Debate and On the Speaker’s Power to Schedule Votes. We ruled in On Alterations to the Citizenship Oath that requiring the citizenship oath to be taken as written without permitting an identifier of choice did not violate free speech, and that altering the oath would render it invalid when considering other areas of law that mandated and defined the oath. In every case, the free speech rights of citizens were balanced against continued functional and orderly government. This logic was also present in our ruling in On the Delegate’s Authority to Staff the Executive Branch when we established that a nation’s free speech rights do not allow government officials to act contrary to their oaths, their tasks, or the direction of their superiors if that speech would contradict official government speech and their role as a member of the government. When acting in an official capacity and utilizing the government’s voice, a nation’s own personal voice must be balanced against their official role.
Free speech, then, is not without its limits. However, these rulings were all directly related to government speech or speech that could interfere with proper execution of government business. That is not the case with the petitioner’s situation, which is a resident expressing his opinion in public through two posts on the Regional Message Board and having those posts literally suppressed by two government officials. Given how often suppression is used, and how available it is to a variety of government officials over the years, it is easy to see how this power could have been abused or caused residents to rush to this Court for relief. And yet, for the better part of five years, that has not been the case. Instead, the moderation of the Regional Message Board has grown more sophisticated. Successive delegates have developed and built on the RMB Guidelines, which serve as a kind of equivalent to the more advanced and comprehensive TNP Community Guidelines that exist for The North Pacific’s offsite properties. Customs have developed and expectations have taken root by the residents who frequent the Regional Message Board. To name but one example, many residents, whether officially part of the region’s Gameside Advocates or not, will frequently point out and report instances where residents post more than once on the Regional Message Board successively. The RMB Guidelines specify that such posts may be subject to suppression, as well as any quoting of suppressed posts that violated the guidelines. It is wholly expected by the residents that the suppression will take place, and even that this is a good thing. This aspect of gameside culture is well-known, accepted, and commonplace. Of course, that does not mean the regular occurrence of suppression is necessarily permissible under this Constitution, but it does underscore that suppression of posts is crucial and essential to the gameside community’s sense of order and how they, like the Regional Assembly on the forum, regulate a civilized place for public discussion that mitigates as much chaos as possible. To say that suppression in all cases is unconstitutional as a violation of free speech would have a similar negative impact on the Regional Message Board as it would on discussions in the Regional Assembly or conversation in the region’s Discord server. This Court looks to its prior rulings to assert that suppression, in general, is not an inherent violation of the Bill of Rights.
On the Constitutionality of Suppressing Specific Forms of Speech
It is not enough to say that suppression of posts is constitutional in the abstract. Our prior rulings identify exceptions to what is an otherwise very broad freedom enshrined in our Bill of Rights. While the Delegate and the Lead Gameside Advocate had the authority to suppress the petitioner’s posts and that authority is consistent with the Constitution, the content of the speech is obviously where the line will be drawn. The Delegate would be hard-pressed to get away with this suppression, for instance, if the content of the post was concerned with political speech in the context of regional politics. The very clear exception to the Delegate’s regulation “as they see fit” is prohibiting political speech of this nature. But it is also not enough for the resident doing the posting to claim an otherwise offensive or actionable post is meant to comment on regional politics. The Legal Code has clear provisions permitting the Delegate to eject and ban nations which violate NationStates rules, so simply suppressing such posts is certainly permitted, even if the resident tries to wrap their violative posts in the trappings of “TNP politics.” Admittedly, it is not always easy to determine when this is occurring. Moderation by its nature often involves making judgment calls, and when those calls are challenged, they must be judged on a case by case basis.
In this particular case, neither the Delegate nor the Lead Gameside asserted the petitioner violated any NationStates rules. The RMB Guidelines do not contain a list similar to the NationStates rules that the Delegate or his officials could cite as being violated. While this Court did consider the brief submitted by Dreadton which asserted a Nationstates rule was violated, we believe the asserted offense, flamebaiting, to have been incorrect. Flamebaiting is understood to involve the targeting of a specific player, which the petitioner does not appear to have done. The Court recognizes trolling to be a more appropriate violation in this case, based not only on the nature of the posts themselves, but on the stated intent of the petitioner in making those posts.
As we have already stated, this Court is not the place to adjudicate the specifics of criminal behavior in the context of the Legal Code, which is best suited for a criminal trial. But we are also cognizant of the difficulty in applying the Legal Code to situations which are properly under the jurisdiction of NationStates itself. Everywhere else in the region, such extralegal moderation concerns are rightfully handled by the administrative team and governed by the TNP Community Guidelines. But in the case of the Regional Message Board, extralegal moderation is handled by NationStates moderation. And when they cannot act, only the Delegate and those with the power to suppress, eject, or ban can. This Court cannot speak to constitutionality or criminal concerns in this context and affirms what is already the understanding of The North Pacific’s government and much of its community: there are some problems and actions way outside the scope of our ability to adjudicate, and outside the scope of the region’s Constitution. Action taken by the Delegate or regional officers in response to these issues is not reviewable by this Court and should never be accepted by this Court if presented in the form of a request for review. The problem is telling the difference, a problem exacerbated by the nature of the Regional Message Board.
This Court does not mean to suggest that officials will “know it when they see it,” though the topic and severity of the content is an important guidepost in determining the nature of legally actionable or extralegally actionable posts. Posts clearly related to regional events, government officials, policies, laws, elections, and in the context of the game of NationStates itself, all would be legally actionable. Posts discussing all of the above outside of the context of NationStates, especially referring to players controlling the nations in a strictly “real life” context, would be extralegally actionable. Extreme language or emotion, particularly if they rise to a threatening or personally concerning level, would also warrant extralegal review. These re hardly exhaustive examples, but we hope they serve as an aid in determining how to approach handling such posts in the future.
On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition
The Court ruled in 2013 that the Bill of Rights established a right to free speech that cannot be infringed, except in emergency situations per Section 11 of the Bill of Rights. This ruling was cited by the petitioner as the primary supporting ruling for his assertion that his freedom of speech rights were violated, and was also addressed by Zyvetskistaahn in his brief. That brief goes on to identify a tension that exists between that ruling and a number of subsequent cases related to free speech. This is an accurate observation. That 2013 ruling was short and to the point, and left absolutely no doubt that freedom of speech could never be abridged. The Court, in properly following the precedent set by this ruling, would have no choice in every subsequent free speech case but to conclude that virtually no limits could be placed on free speech at all. And yet, that is not what happened. In every subsequent ruling on free speech, this Court conveniently forgot that this ruling existed. Instead of an absolute firewall preventing any limitation to speech, we have years of precedent upholding reasonable limits to free speech. Clearly this Court has already effectively overturned this ruling, but it is time to do so properly. We hereby overturn this ruling in its entirety.
The Court arrived at the correct conclusion in that ruling, but did so in an overly broad manner. The law prohibiting sedition was unconstitutional, not because no limits can be placed on free speech at all, but because the limits placed on speech were too great. Such a law would have chilled speech critical of the government, and led residents to doubt what was safe to say publicly. As we noted earlier, the Legal Code clearly protects speech made in the context of TNP politics. Other provisions protect against speech that enters the realm of treason, and the behavior that the sedition law seemed to target can be properly addressed without such an additional provision. With other means available, and an overly broad restriction to political speech that is clearly protected, there was every reason to strike down that law. But there is also every reason to be cautious and deliberate when doing so, in order to avoid being unable to effectively regulate or govern the region when other kinds of harm my be done to the community, and that is what the prior ruling risked doing.
Ruling of the Court of The North Pacific
In regards to the Judicial Inquiry filed by DiamondComodo on the Regulation of the Regional Message Board.
Opinion drafted by Pallaith,
In regards to the Judicial Inquiry filed by DiamondComodo on the Regulation of the Regional Message Board.
Opinion drafted by Pallaith,
The Court took into consideration the inquiry filed [here] by DiamondComodo
The Court took into consideration the legal brief filed [here] by Zyvetskistaahn
The Court took into consideration the legal brief filed [here] by Dreadton
The Court took into consideration the relevant portions of the Constitution of The North Pacific.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
The Court took into consideration the relevant portion of the NationStates Rules.
The Court took into consideration the relevant portion of the TNP Community Guidelines.
The Court took into consideration the RMB Guidelines.
The Court took into consideration prior rulings by the Court here,
here,
here,
here,
here, and here.
The Court opines the following:
On Standing
The petitioner was the one directly impacted by the government actions and policies that the Court has been asked to review. The petitioner’s posts were suppressed twice, once by Kastonvia, the Lead Gameside Advocate, and once by MadJack, the Delegate. The petitioner was also informed that subsequent posts of that nature, that is, transphobic posts, would be suppressed as well. There is no question of proper standing in this case.
On the Court’s Prior Ruling on the Delegate’s Authority to Staff the Executive Branch
This is not the first time the Court has been asked to review government action that the petitioner alleges violated their freedom of speech. We previously ruled in On the Delegate’s Authority to Staff the Executive Branch that we could not directly answer the question of whether the delegate violated the petitioner’s freedom of speech, so as not to prejudice any future criminal trial, and because the information needed to determine such a question would be best gathered and considered through the criminal trial process. We appreciate that any potential criminal case would undoubtedly take into account this ruling’s determination that MadJack and Kastonvia engaged in unconstitutional actions – as it should. But we must echo Justice Eluvatar from his dissent in that case. The facts that must be discovered and considered in such a criminal trial would aim to prove more than whether or not the actions committed were unconstitutional and would be concerned with intent and possible deliberate malfeasance. Gross Misconduct is a very different charge than simply identifying whether or not some act is unconstitutional and looks beyond case law and prior precedent and how the two are applied to what is readily available to us when examining the question brought by the petitioner.
The Court was right to note that a request for review is not the proper venue to consider evidence intended to prove a case at a criminal trial, or to consider the questions relevant to that trial. But that does not preclude this Court from answering the question posed by DiamondComodo, nor does it preclude this Court from examining evidence relevant to determining strictly whether a constitutional violation occurred. The context in which we view what is provided in briefs, or what is publicly available to us, is very different from the context of a criminal trial. The Constitution charges us with answering his query and determining the legality of the actions of government officials. The possibility of a future criminal trial does not make free speech queries immune from this Court’s consideration. As Justice Eluvatar noted, if this Court believes it cannot consider a question, then it should not answer that question. And the Court erred in not doing so back then. We hereby overturn this portion of the ruling.
The ruling’s conclusion, that the challenged action was permissible and consistent with the Constitution, is still correct, and still useful in navigating the question before us in this review. This time, it is the limitations of free speech and the situations where the government may potentially limit it as it relates to Regional Message Board posts that is at issue. As with that prior ruling, we will consider the government’s authority in this area in a broader sense, and what limits there may be to that authority, but we will come to a conclusion as to whether the action questioned went beyond those limits.
On the Authority to Suppress Posts
The Legal Code grants broad authority to the Delegate to “regulate the Regional Message Board as they see fit” in its onsite authority section. The petitioner asks the Court to review the use of the suppression power, which is a function of regional officer permissions to help moderate the Regional Message Board in The North Pacific. This message board is located squarely in space controlled not by The North Pacific, but by NationStates itself, and is what constitutes the core and almost entirety of the region’s gameside community. Suppression is included in what the Legal Code refers to as Regional Powers, which also includes border control, or the ability to eject and ban nations from the region. All of these powers are controlled and assigned by the Delegate and may be utilized in executing the Delegate’s regulation of the Regional Message Board. Suppression is a tool successive delegates have made available to every member of their cabinet since the creation of regional officers, and is the primary method of moderating the Regional Message Board, particularly given the Legal Code’s strict limitations to the use of border control powers. This power is not new, and predates the provisions added to the onsite authority laws for regional officers, but its use has spread dramatically since then. The Court recognizes that the Delegate has explicit authority to use these Regional Powers, including suppression. However, the onsite authority provisions also establish a right for judicial review of this regulation, which suggests that despite having the authority to use these powers, the Delegate may nevertheless use them improperly, and in ways contrary to the Bill of Rights.
On the Constitutionality of Suppression of Posts
The Court has ruled twice on the use of suppression power before. In our ruling in On the Delegate’s Authority to Staff the Executive Branch, this Court overturned a previous ruling, On the Suppression of Posts on the Regional Message Board, as we did not accept the reasoning that because the suppression of posts was a result of friendly banter, there was no harm done. In fact, we ruled that suppressing posts is inherently harmful, as suppressing free speech in any way is inherently harmful. But this Court has also ruled, repeatedly, that there are sometimes situations where speech may be restricted. What these rulings have in common is that speech is limited when allowing unfettered free speech would cause greater harm to the community or the proper functioning of the government. Free speech concerns must be balanced against other rights, and residents are not free to say whatever they want regardless of the context. We ruled in On the Speaker’s Power to End Debate that ending debate would necessarily restrict the free speech of citizens, but was nevertheless permitted because those free speech rights must be balanced against maintaining order in the Regional Assembly and fostering civilized debate, and reiterated that position in On the Use of the Speaker’s Power to End Debate and On the Speaker’s Power to Schedule Votes. We ruled in On Alterations to the Citizenship Oath that requiring the citizenship oath to be taken as written without permitting an identifier of choice did not violate free speech, and that altering the oath would render it invalid when considering other areas of law that mandated and defined the oath. In every case, the free speech rights of citizens were balanced against continued functional and orderly government. This logic was also present in our ruling in On the Delegate’s Authority to Staff the Executive Branch when we established that a nation’s free speech rights do not allow government officials to act contrary to their oaths, their tasks, or the direction of their superiors if that speech would contradict official government speech and their role as a member of the government. When acting in an official capacity and utilizing the government’s voice, a nation’s own personal voice must be balanced against their official role.
Free speech, then, is not without its limits. However, these rulings were all directly related to government speech or speech that could interfere with proper execution of government business. That is not the case with the petitioner’s situation, which is a resident expressing his opinion in public through two posts on the Regional Message Board and having those posts literally suppressed by two government officials. Given how often suppression is used, and how available it is to a variety of government officials over the years, it is easy to see how this power could have been abused or caused residents to rush to this Court for relief. And yet, for the better part of five years, that has not been the case. Instead, the moderation of the Regional Message Board has grown more sophisticated. Successive delegates have developed and built on the RMB Guidelines, which serve as a kind of equivalent to the more advanced and comprehensive TNP Community Guidelines that exist for The North Pacific’s offsite properties. Customs have developed and expectations have taken root by the residents who frequent the Regional Message Board. To name but one example, many residents, whether officially part of the region’s Gameside Advocates or not, will frequently point out and report instances where residents post more than once on the Regional Message Board successively. The RMB Guidelines specify that such posts may be subject to suppression, as well as any quoting of suppressed posts that violated the guidelines. It is wholly expected by the residents that the suppression will take place, and even that this is a good thing. This aspect of gameside culture is well-known, accepted, and commonplace. Of course, that does not mean the regular occurrence of suppression is necessarily permissible under this Constitution, but it does underscore that suppression of posts is crucial and essential to the gameside community’s sense of order and how they, like the Regional Assembly on the forum, regulate a civilized place for public discussion that mitigates as much chaos as possible. To say that suppression in all cases is unconstitutional as a violation of free speech would have a similar negative impact on the Regional Message Board as it would on discussions in the Regional Assembly or conversation in the region’s Discord server. This Court looks to its prior rulings to assert that suppression, in general, is not an inherent violation of the Bill of Rights.
On the Constitutionality of Suppressing Specific Forms of Speech
It is not enough to say that suppression of posts is constitutional in the abstract. Our prior rulings identify exceptions to what is an otherwise very broad freedom enshrined in our Bill of Rights. While the Delegate and the Lead Gameside Advocate had the authority to suppress the petitioner’s posts and that authority is consistent with the Constitution, the content of the speech is obviously where the line will be drawn. The Delegate would be hard-pressed to get away with this suppression, for instance, if the content of the post was concerned with political speech in the context of regional politics. The very clear exception to the Delegate’s regulation “as they see fit” is prohibiting political speech of this nature. But it is also not enough for the resident doing the posting to claim an otherwise offensive or actionable post is meant to comment on regional politics. The Legal Code has clear provisions permitting the Delegate to eject and ban nations which violate NationStates rules, so simply suppressing such posts is certainly permitted, even if the resident tries to wrap their violative posts in the trappings of “TNP politics.” Admittedly, it is not always easy to determine when this is occurring. Moderation by its nature often involves making judgment calls, and when those calls are challenged, they must be judged on a case by case basis.
In this particular case, neither the Delegate nor the Lead Gameside asserted the petitioner violated any NationStates rules. The RMB Guidelines do not contain a list similar to the NationStates rules that the Delegate or his officials could cite as being violated. While this Court did consider the brief submitted by Dreadton which asserted a Nationstates rule was violated, we believe the asserted offense, flamebaiting, to have been incorrect. Flamebaiting is understood to involve the targeting of a specific player, which the petitioner does not appear to have done. The Court recognizes trolling to be a more appropriate violation in this case, based not only on the nature of the posts themselves, but on the stated intent of the petitioner in making those posts.
As we have already stated, this Court is not the place to adjudicate the specifics of criminal behavior in the context of the Legal Code, which is best suited for a criminal trial. But we are also cognizant of the difficulty in applying the Legal Code to situations which are properly under the jurisdiction of NationStates itself. Everywhere else in the region, such extralegal moderation concerns are rightfully handled by the administrative team and governed by the TNP Community Guidelines. But in the case of the Regional Message Board, extralegal moderation is handled by NationStates moderation. And when they cannot act, only the Delegate and those with the power to suppress, eject, or ban can. This Court cannot speak to constitutionality or criminal concerns in this context and affirms what is already the understanding of The North Pacific’s government and much of its community: there are some problems and actions way outside the scope of our ability to adjudicate, and outside the scope of the region’s Constitution. Action taken by the Delegate or regional officers in response to these issues is not reviewable by this Court and should never be accepted by this Court if presented in the form of a request for review. The problem is telling the difference, a problem exacerbated by the nature of the Regional Message Board.
This Court does not mean to suggest that officials will “know it when they see it,” though the topic and severity of the content is an important guidepost in determining the nature of legally actionable or extralegally actionable posts. Posts clearly related to regional events, government officials, policies, laws, elections, and in the context of the game of NationStates itself, all would be legally actionable. Posts discussing all of the above outside of the context of NationStates, especially referring to players controlling the nations in a strictly “real life” context, would be extralegally actionable. Extreme language or emotion, particularly if they rise to a threatening or personally concerning level, would also warrant extralegal review. These re hardly exhaustive examples, but we hope they serve as an aid in determining how to approach handling such posts in the future.
On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition
The Court ruled in 2013 that the Bill of Rights established a right to free speech that cannot be infringed, except in emergency situations per Section 11 of the Bill of Rights. This ruling was cited by the petitioner as the primary supporting ruling for his assertion that his freedom of speech rights were violated, and was also addressed by Zyvetskistaahn in his brief. That brief goes on to identify a tension that exists between that ruling and a number of subsequent cases related to free speech. This is an accurate observation. That 2013 ruling was short and to the point, and left absolutely no doubt that freedom of speech could never be abridged. The Court, in properly following the precedent set by this ruling, would have no choice in every subsequent free speech case but to conclude that virtually no limits could be placed on free speech at all. And yet, that is not what happened. In every subsequent ruling on free speech, this Court conveniently forgot that this ruling existed. Instead of an absolute firewall preventing any limitation to speech, we have years of precedent upholding reasonable limits to free speech. Clearly this Court has already effectively overturned this ruling, but it is time to do so properly. We hereby overturn this ruling in its entirety.
The Court arrived at the correct conclusion in that ruling, but did so in an overly broad manner. The law prohibiting sedition was unconstitutional, not because no limits can be placed on free speech at all, but because the limits placed on speech were too great. Such a law would have chilled speech critical of the government, and led residents to doubt what was safe to say publicly. As we noted earlier, the Legal Code clearly protects speech made in the context of TNP politics. Other provisions protect against speech that enters the realm of treason, and the behavior that the sedition law seemed to target can be properly addressed without such an additional provision. With other means available, and an overly broad restriction to political speech that is clearly protected, there was every reason to strike down that law. But there is also every reason to be cautious and deliberate when doing so, in order to avoid being unable to effectively regulate or govern the region when other kinds of harm my be done to the community, and that is what the prior ruling risked doing.
Kronos
Registered
- TNP Nation
- Kronogistan
- Discord
- Kronos#7021
In the first section on overruling the portion of Executive Staff, would it be best to show which portion is being overruled so we have it on record?
Other than that I think the draft is very well written so far. Do you have an idea on how you want to bring it all together in closing?
I found a spelling error here.
There is a spelling error here too.
Other than that I think the draft is very well written so far. Do you have an idea on how you want to bring it all together in closing?
I would say currently I’m less confident in the paragraph evaluating the specific case. This is obviously the core of the ruling, at least as far as answering the question that started the review, but it’s a tad like uncharted ground. I’m inclined to conclude the suppression was constitutional and not a violation of the BoR. I’m not sure we should be concluding which NS rule violation the post is guilty of, especially when the government didn’t cite NS rules as the reason for the action taken. To be fair, they don’t have to, since that provision in the Legal Code is for justifying bans and they only suppressed. I think I need to draw a line between the NS rules and the more general community moderation, and express that we’re giving the delegate the benefit of the doubt since the posts in question treaded into murky territory. That will segue into my administration paragraphs where I establish legal and extralegal response to moderating posts. Those two paragraphs will likely get their own subheading.
Kronos also expressed to me that we could consider moving the overruling of the sedition case to an earlier part of the decision. It was one of the first parts I wrote and in my view dispensing with that ruling is essential to even going into all the case law I do in the first half of the decision. But that was true for all the subsequent courts too and they just never did, so as a final aside I thought it worked at the end.
When it comes to being specific about what is being overruled, I thought the ruling was clear which portion is being overturned. I suppose I could quote it all, though it is a bit of content to slap into what is already a longer ruling. I’d love to get Sil’s feedback on these things. Especially if he isn’t on board with the direction the ruling is going, because writing up a dissent will also take some time and we may still be able to avoid it depending on his input with the draft opinion as it is so far.
Kronos also expressed to me that we could consider moving the overruling of the sedition case to an earlier part of the decision. It was one of the first parts I wrote and in my view dispensing with that ruling is essential to even going into all the case law I do in the first half of the decision. But that was true for all the subsequent courts too and they just never did, so as a final aside I thought it worked at the end.
When it comes to being specific about what is being overruled, I thought the ruling was clear which portion is being overturned. I suppose I could quote it all, though it is a bit of content to slap into what is already a longer ruling. I’d love to get Sil’s feedback on these things. Especially if he isn’t on board with the direction the ruling is going, because writing up a dissent will also take some time and we may still be able to avoid it depending on his input with the draft opinion as it is so far.
- TNP Nation
- sil_dorsett
- Discord
- sildorsett
I think I found what Dreadton was referencing in their brief about NS mods leaving certain things to the ROs...
With that said, I think that kinda ruins my stance that all gameside rulebreaking must be handled by an NS Mod, which kills my entire argument against the direction we're going.
Sedgistan - https://forum.nationstates.net/viewtopic.php?p=22495345#p22495345 :
With that said, I think that kinda ruins my stance that all gameside rulebreaking must be handled by an NS Mod, which kills my entire argument against the direction we're going.
Alright, let's try this now.
The Court took into consideration the inquiry filed here by DiamondComodo
The Court took into consideration the legal brief filed here by Zyvetskistaahn
The Court took into consideration the legal brief filed here by Dreadton
The Court took into consideration the relevant portions of the Constitution of The North Pacific.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
The Court took into consideration the relevant portion of the NationStates Rules.
The Court took into consideration the relevant portion of the TNP Community Guidelines.
The Court took into consideration the RMB Guidelines.
The Court took into consideration the post made by NationStates moderation here.
The Court took into consideration prior rulings by the Court here, here, here, here, here, and here.
The Court opines the following:
On Standing
The petitioner was the one directly impacted by the government actions and policies that the Court has been asked to review. The petitioner’s posts were suppressed twice, once by Kastonvia, the Lead Gameside Advocate, and once by MadJack, the Delegate. The petitioner was also informed that subsequent posts of that nature, that is, transphobic posts, would be suppressed as well. There is no question of proper standing in this case.
On the Court’s Prior Ruling on the Delegate’s Authority to Staff the Executive Branch
This is not the first time the Court has been asked to review government action that the petitioner alleges violated their freedom of speech. It previously ruled in On the Delegate’s Authority to Staff the Executive Branch that it could not directly answer the question of whether the delegate violated the petitioner’s freedom of speech, so as not to prejudice any future criminal trial, and because the information needed to determine such a question would be best gathered and considered through the criminal trial process. We appreciate that any potential criminal case would undoubtedly take into account this ruling’s determination that MadJack and Kastonvia engaged in unconstitutional actions – as it should. But we must echo Justice Eluvatar from his dissent in that case. The facts that must be discovered and considered in such a criminal trial would aim to prove more than simply whether or not the actions committed were unconstitutional. Such a trial would be concerned with intent and possible deliberate malfeasance. Gross Misconduct is a very different charge than simply identifying whether or not some act is unconstitutional, as it requires looking beyond case law and prior precedent and how the two are applied to what is readily available to us when examining the question brought by the petitioner.
The Court was right to note that a request for review is not the proper venue to consider evidence intended to prove a case at a criminal trial, or to consider the questions relevant to that trial. But that does not preclude this Court from answering the question posed by DiamondComodo, nor does it preclude this Court from examining evidence relevant to determining strictly whether a constitutional violation occurred. The context in which we view what is provided in briefs, or what is publicly available to us, is very different from the context of a criminal trial. The Constitution charges us with answering his query and determining the legality of the actions of government officials. The possibility of a future criminal trial does not make free speech queries immune from this Court’s consideration. As Justice Eluvatar noted, if this Court believes it cannot consider a question, then it should not answer that question. And the Court erred in not doing so back then. We hereby overturn this portion of the ruling. The ruling’s conclusion, that the Delegate has broad authority to manage the executive staff, and that free speech is more limited for government officials, is still correct, and still useful in navigating the question before us in this review.
On the Authority to Suppress Posts
The Legal Code grants broad authority to the Delegate to “regulate the Regional Message Board as they see fit” in its onsite authority section. The petitioner asks the Court to review the use of the suppression power, which is a function of regional officer permissions to help moderate the Regional Message Board in The North Pacific. This message board is located squarely in space controlled not by The North Pacific, but by NationStates itself, and is what constitutes the core and almost entirety of the region’s gameside community. Suppression is included in what the Legal Code refers to as Regional Powers, which also includes border control, or the ability to eject and ban nations from the region. All of these powers are controlled and assigned by the Delegate and may be utilized in executing the Delegate’s regulation of the Regional Message Board. Suppression is a tool successive delegates have made available to every member of their cabinet since the creation of regional officers, and is the primary method of moderating the Regional Message Board, particularly given the Legal Code’s strict limitations to the use of border control powers. This power is not new, and predates the provisions added to the onsite authority laws for regional officers, but its use has spread dramatically since then. The Court recognizes that the Delegate has explicit authority to use these Regional Powers, including suppression. However, the onsite authority provisions also establish a right for judicial review of this regulation, which suggests that despite having the authority to use these powers, the Delegate may nevertheless use them improperly, and in ways contrary to the Bill of Rights.
On the Constitutionality of Suppression of Posts
The Court has ruled twice on the use of suppression power before. In its ruling in On the Delegate’s Authority to Staff the Executive Branch, the Court overturned a previous ruling, On the Suppression of Posts on the Regional Message Board, as it did not accept the reasoning that because the suppression of posts was a result of friendly banter, there was no harm done. In fact, the Court ruled that suppressing posts is inherently harmful, as suppressing free speech in any way is inherently harmful. But the Court has also ruled, repeatedly, that there are sometimes situations where speech may be restricted. What these rulings have in common is that speech is limited when allowing unfettered free speech would cause greater harm to the community or the proper functioning of the government. Free speech concerns must be balanced against other rights, and residents are not free to say whatever they want regardless of the context. The Court ruled in On the Speaker’s Power to End Debate that ending debate would necessarily restrict the free speech of citizens, but was nevertheless permitted because those free speech rights must be balanced against maintaining order in the Regional Assembly and fostering civilized debate, and reiterated that position in On the Use of the Speaker’s Power to End Debate and On the Speaker’s Power to Schedule Votes. It ruled in On Alterations to the Citizenship Oath that requiring the citizenship oath to be taken as written without permitting an identifier of choice did not violate free speech, and that altering the oath would render it invalid when considering other areas of law that mandated and defined the oath. In every case, the free speech rights of citizens were balanced against continued functional and orderly government. This logic was also present in the ruling in On the Delegate’s Authority to Staff the Executive Branch, which established that a nation’s free speech rights do not allow government officials to act contrary to their oaths, their tasks, or the direction of their superiors if that speech would contradict official government speech and their role as a member of the government. When acting in an official capacity and utilizing the government’s voice, a nation’s own personal voice must be balanced against their official role.
Free speech, then, is not without its limits. However, these rulings were all directly related to government speech or speech that could interfere with proper execution of government business. That is not the case with the petitioner’s situation, which is a resident expressing his opinion in public through two posts on the Regional Message Board and having those posts literally suppressed by two government officials. Given how often suppression is used, and how available it is to a variety of government officials over the years, it is easy to see how this power could have been abused or caused residents to rush to this Court for relief. And yet, for the better part of five years, that has not been the case. Instead, the moderation of the Regional Message Board has grown more sophisticated. Successive delegates have developed and built on the RMB Guidelines, which serve as a kind of equivalent to the more advanced and comprehensive TNP Community Guidelines that exist for The North Pacific’s offsite properties. Customs have developed and expectations have taken root by the residents who frequent the Regional Message Board. To name but one example, many residents, whether officially part of the region’s Gameside Advocates or not, will frequently point out and report instances where residents post more than once on the Regional Message Board successively. The RMB Guidelines specify that such posts may be subject to suppression, as well as any quoting of suppressed posts that violated the guidelines. It is wholly expected by the residents that the suppression will take place, and even that this is a good thing. This aspect of gameside culture is well-known, accepted, and commonplace.
Of course, that does not mean the regular occurrence of suppression is necessarily permissible under this Constitution, but it does underscore that suppression of posts is crucial and essential to the gameside community’s sense of order and how they, like the Regional Assembly on the forum, regulate a civilized place for public discussion that mitigates as much chaos as possible. To say that suppression in all cases is unconstitutional as a violation of free speech would have a similar negative impact on the Regional Message Board as it would on discussions in the Regional Assembly or conversation in the region’s Discord server. This Court looks to its prior rulings to assert that suppression, in general, is not an inherent violation of the Bill of Rights.
On the Constitutionality of Suppressing Specific Forms of Speech
It is not enough to say that suppression of posts is constitutional in the abstract. Prior rulings identify exceptions to what is an otherwise very broad freedom enshrined in our Bill of Rights. While the Delegate and the Lead Gameside Advocate had the authority to suppress the petitioner’s posts and that authority is consistent with the Constitution, the content of the speech is obviously where the line will be drawn. The Delegate would be hard-pressed to get away with this suppression, for instance, if the content of the post was concerned with political speech in the context of regional politics. The very clear exception to the Delegate’s regulation “as they see fit” is prohibiting political speech of this nature. But it is also not enough for the resident doing the posting to claim an otherwise offensive or actionable post is meant to comment on regional politics. The Legal Code has clear provisions permitting the Delegate to eject and ban nations which violate NationStates rules, so simply suppressing such posts is certainly permitted, even if the resident tries to wrap their violative posts in the trappings of “TNP politics.” Admittedly, it is not always easy to determine when this is occurring. Moderation by its nature often involves making judgment calls, and when those calls are challenged, they must be judged on a case by case basis.
While this Court did consider the brief submitted by Dreadton which asserted a Nationstates rule was violated, we believe the asserted offense, flamebaiting, to have been incorrect. Flamebaiting is understood to involve the targeting of a specific player, which the petitioner does not appear to have done. In our opinion, the posts could instead be examples of what NationStates constitutes as trolling. We draw this conclusion based on the nature of the posts themselves, which would invite outrage and disagreement and can clearly be seen to have angered many members of the community, particularly as they were unprompted and do not fit in any proper context that helps make better sense of them. Furthermore, the stated intent of the petitioner in making those posts is also known, as the petitioner admitted that he made the posts out of anger and acknowledges that the posts should not have been made. Naturally there is a great deal of subjective reasoning in determining whether these posts truly violate NationStates rules, but this Court recognizes that in suppressing posts that are deemed to violate NationStates rules, the Delegate would be acting with great restraint, given the Legal Code permits even more drastic action in response. In this particular case, however, neither the Delegate nor the Lead Gameside Advocate asserted the petitioner violated any NationStates rules. In addition, the RMB Guidelines do not contain a list similar to the NationStates rules that the Delegate or his officials could cite as being violated. Any similar list found in the TNP Community Guidelines would also not apply, despite Dreadton’s brief bringing them up, as they are explicitly designed for the region’s offsite properties and enforced by TNP’s administration team.
That being said, in seeking to foster constructive, positive dialogue and keeping the peace in the community, the Delegate has a great deal of leeway in moderating the Regional Message Board. It is not just this Court which believes this. Considering that our laws explicitly allow the Delegate to take action based on perceived violations of NationStates rules, we must also consider the Delegate’s relationship with the typical authority for such moderation of the gameside community, the NationStates moderators themselves. It would be unreasonable to assert that if a NationStates moderator chooses not to respond to a post reported on the Regional Message Board, the post is not actionable. Given the subjective nature of many posts, and the sheer number of them, not to mention the many other regions to moderate outside of The North Pacific, it would be unreasonable to expect every instance of moderation to be handled by NationStates moderators. It is expected for the region itself to pick up the slack: “Players can manage an element of self-moderation over their RMBs, with the ability to suppress posts and eject/ban troublemakers. That means that minor issues are left to founders/delegates to sort out. Regions also have certain cultures to them, reflected on their RMBs.” Moderation goes on to name specific examples of how what is actionable in one community may not be in another. Much of our culture is in our robust legal culture and our broad freedom of speech. But our laws cannot be consistently applied to every single specific case of questionable posts. Every situation requires its own consideration, and sometimes it comes down to our Delegate and regional officers to make the call that would otherwise be for NationStates moderation.
Finally, there is the subject matter of the posts to consider. Clearly these posts were unrelated to any discussion of regional politics and had nothing to do with the player’s engagement with other players in their capacity as a nation residing in the region or the game of NationStates. The subject spoke to issues outside of the game, the kind of subject that often prompts challenges to moderation in the first place. The posts were transphobic in nature, and deeply offensive to many members of the community. When acting in a capacity as a moderator on the Regional Message Board, the Delegate has the most leeway in terms of our region’s laws, as these laws are stretched to their limits when considering subjects that are strictly outside of the framework of the game in which they were created. This does not mean that any action the Delegate or the regional officers take on speech in this context cannot be reviewed by this Court, as there are any number of benign topics that would not warrant shutting down speech. One could imagine a scenario where the oft-cited debate on whether pineapple can be on a pizza might lead the Delegate to suppress posts he disagrees with. This has nothing to do with regional politics after all, and can be seen as a player speaking in their capacity as a person playing NationStates. But as with the old ruling overturned by the Court, the seemingly harmless nature of the posts and the perceived joking on the part of the Delegate, by pretending to have a heavy hand on the topic, would not be permissible limits to speech.
The petitioner’s posts were deliberately inflammatory and designed to inflict distress, they violated the general good-natured character of the community and defied the inclusive and kind environment the Delegate deliberately intended to foster with his policies and practices. The Delegate has the legal authority to regulate the Regional Message Board and the constitutional authority to restrict some forms of speech in the interest of the greater good of the community. And the Delegate has a secondary role as a moderator for the gameside community in addition to or in the absence of NationStates moderation, particularly in the most subjective or low priority situations as with this one. We find that the petitioner’s rights under the Bill of Rights were not violated by the suppression of his posts.
On Extralegal Moderation
As we have already stated, this Court is not the place to adjudicate the specifics of criminal behavior in the context of the Legal Code, which is best suited for a criminal trial. But we are also cognizant of the difficulty in applying the Legal Code to situations which are properly under the jurisdiction of NationStates itself. Everywhere else in the region, such extralegal moderation concerns are rightfully handled by the administrative team and governed by the TNP Community Guidelines. But in the case of the Regional Message Board, extralegal moderation is handled by NationStates moderation. And when they cannot act, only the Delegate and those with the power to suppress, eject, or ban can. This Court cannot speak to constitutionality or criminal concerns in this context and affirms what is already the understanding of The North Pacific’s government and much of its community: there are some problems and actions way outside the scope of our ability to adjudicate, and outside the scope of the region’s Constitution. Action taken by the Delegate or regional officers in response to these issues is not reviewable by this Court and should never be accepted by this Court if presented in the form of a request for review. The problem is telling the difference, a problem exacerbated by the nature of the Regional Message Board.
This Court does not mean to suggest that officials will “know it when they see it,” though the topic and severity of the content is an important guidepost in determining the nature of legally actionable or extralegally actionable posts. Posts clearly related to regional events, government officials, policies, laws, elections, and in the context of the game of NationStates itself, all would be legally actionable. Posts discussing all of the above outside of the context of NationStates, especially referring to players controlling the nations in a strictly “real life” context, are more likely to be extralegally actionable. Extreme language or emotion, particularly if they rise to a threatening or personally concerning level, would also warrant extralegal review. When considering such posts, NationStates rules should be consulted, and TNP Community Guidelines can also serve as a point of reference. If none of these rules are clearly violated, the posts are likely legally actionable, and the Delegate and regional officers may be subject to judicial review. These are hardly exhaustive examples, but we hope they serve as an aid in determining how to approach handling such posts in the future.
On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition
The Court ruled in 2013 that the Bill of Rights established a right to free speech that cannot be infringed, except in emergency situations per Section 11 of the Bill of Rights. This ruling was cited by the petitioner as the primary supporting ruling for his assertion that his freedom of speech rights were violated, and was also addressed by Zyvetskistaahn in his brief. That brief goes on to identify a tension that exists between that ruling and a number of subsequent cases related to free speech. This is an accurate observation. That 2013 ruling was short and to the point, and left absolutely no doubt that freedom of speech could never be abridged. The Court, in properly following the precedent set by this ruling, would have no choice in every subsequent free speech case but to conclude that virtually no limits could be placed on free speech at all. And yet, that is not what happened. In every subsequent ruling on free speech, this Court conveniently forgot that this ruling existed. Instead of an absolute firewall preventing any limitation to speech, we have years of precedent upholding reasonable limits to free speech. Clearly this Court has already effectively overturned this ruling, but it is time to do so properly. We hereby overturn this ruling in its entirety.
The Court arrived at the correct conclusion in that ruling, but did so in an overly broad manner. The law prohibiting sedition was unconstitutional, not because no limits can be placed on free speech at all, but because the limits placed on speech were too great. Such a law would have chilled speech critical of the government, and led residents to doubt what was safe to say publicly. As we noted earlier, the Legal Code clearly protects speech made in the context of TNP politics. Other provisions protect against speech that enters the realm of treason, and the behavior that the sedition law seemed to target can be properly addressed without such an additional provision. With other means available, and an overly broad restriction to political speech that is clearly protected, there was every reason to strike down that law. But there is also every reason to be cautious and deliberate when doing so, in order to avoid being unable to effectively regulate or govern the region when other kinds of harm may be done to the community, and that is what the prior ruling risked doing.
Ruling of the Court of The North Pacific
In regards to the Judicial Inquiry filed by DiamondComodo on the Regulation of the Regional Message Board.
Opinion drafted by Pallaith,
In regards to the Judicial Inquiry filed by DiamondComodo on the Regulation of the Regional Message Board.
Opinion drafted by Pallaith,
The Court took into consideration the inquiry filed here by DiamondComodo
The Court took into consideration the legal brief filed here by Zyvetskistaahn
The Court took into consideration the legal brief filed here by Dreadton
The Court took into consideration the relevant portions of the Constitution of The North Pacific.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
The Court took into consideration the relevant portion of the NationStates Rules.
The Court took into consideration the relevant portion of the TNP Community Guidelines.
The Court took into consideration the RMB Guidelines.
The Court took into consideration the post made by NationStates moderation here.
The Court took into consideration prior rulings by the Court here, here, here, here, here, and here.
The Court opines the following:
On Standing
The petitioner was the one directly impacted by the government actions and policies that the Court has been asked to review. The petitioner’s posts were suppressed twice, once by Kastonvia, the Lead Gameside Advocate, and once by MadJack, the Delegate. The petitioner was also informed that subsequent posts of that nature, that is, transphobic posts, would be suppressed as well. There is no question of proper standing in this case.
On the Court’s Prior Ruling on the Delegate’s Authority to Staff the Executive Branch
This is not the first time the Court has been asked to review government action that the petitioner alleges violated their freedom of speech. It previously ruled in On the Delegate’s Authority to Staff the Executive Branch that it could not directly answer the question of whether the delegate violated the petitioner’s freedom of speech, so as not to prejudice any future criminal trial, and because the information needed to determine such a question would be best gathered and considered through the criminal trial process. We appreciate that any potential criminal case would undoubtedly take into account this ruling’s determination that MadJack and Kastonvia engaged in unconstitutional actions – as it should. But we must echo Justice Eluvatar from his dissent in that case. The facts that must be discovered and considered in such a criminal trial would aim to prove more than simply whether or not the actions committed were unconstitutional. Such a trial would be concerned with intent and possible deliberate malfeasance. Gross Misconduct is a very different charge than simply identifying whether or not some act is unconstitutional, as it requires looking beyond case law and prior precedent and how the two are applied to what is readily available to us when examining the question brought by the petitioner.
The Court was right to note that a request for review is not the proper venue to consider evidence intended to prove a case at a criminal trial, or to consider the questions relevant to that trial. But that does not preclude this Court from answering the question posed by DiamondComodo, nor does it preclude this Court from examining evidence relevant to determining strictly whether a constitutional violation occurred. The context in which we view what is provided in briefs, or what is publicly available to us, is very different from the context of a criminal trial. The Constitution charges us with answering his query and determining the legality of the actions of government officials. The possibility of a future criminal trial does not make free speech queries immune from this Court’s consideration. As Justice Eluvatar noted, if this Court believes it cannot consider a question, then it should not answer that question. And the Court erred in not doing so back then. We hereby overturn this portion of the ruling. The ruling’s conclusion, that the Delegate has broad authority to manage the executive staff, and that free speech is more limited for government officials, is still correct, and still useful in navigating the question before us in this review.
On the Authority to Suppress Posts
The Legal Code grants broad authority to the Delegate to “regulate the Regional Message Board as they see fit” in its onsite authority section. The petitioner asks the Court to review the use of the suppression power, which is a function of regional officer permissions to help moderate the Regional Message Board in The North Pacific. This message board is located squarely in space controlled not by The North Pacific, but by NationStates itself, and is what constitutes the core and almost entirety of the region’s gameside community. Suppression is included in what the Legal Code refers to as Regional Powers, which also includes border control, or the ability to eject and ban nations from the region. All of these powers are controlled and assigned by the Delegate and may be utilized in executing the Delegate’s regulation of the Regional Message Board. Suppression is a tool successive delegates have made available to every member of their cabinet since the creation of regional officers, and is the primary method of moderating the Regional Message Board, particularly given the Legal Code’s strict limitations to the use of border control powers. This power is not new, and predates the provisions added to the onsite authority laws for regional officers, but its use has spread dramatically since then. The Court recognizes that the Delegate has explicit authority to use these Regional Powers, including suppression. However, the onsite authority provisions also establish a right for judicial review of this regulation, which suggests that despite having the authority to use these powers, the Delegate may nevertheless use them improperly, and in ways contrary to the Bill of Rights.
On the Constitutionality of Suppression of Posts
The Court has ruled twice on the use of suppression power before. In its ruling in On the Delegate’s Authority to Staff the Executive Branch, the Court overturned a previous ruling, On the Suppression of Posts on the Regional Message Board, as it did not accept the reasoning that because the suppression of posts was a result of friendly banter, there was no harm done. In fact, the Court ruled that suppressing posts is inherently harmful, as suppressing free speech in any way is inherently harmful. But the Court has also ruled, repeatedly, that there are sometimes situations where speech may be restricted. What these rulings have in common is that speech is limited when allowing unfettered free speech would cause greater harm to the community or the proper functioning of the government. Free speech concerns must be balanced against other rights, and residents are not free to say whatever they want regardless of the context. The Court ruled in On the Speaker’s Power to End Debate that ending debate would necessarily restrict the free speech of citizens, but was nevertheless permitted because those free speech rights must be balanced against maintaining order in the Regional Assembly and fostering civilized debate, and reiterated that position in On the Use of the Speaker’s Power to End Debate and On the Speaker’s Power to Schedule Votes. It ruled in On Alterations to the Citizenship Oath that requiring the citizenship oath to be taken as written without permitting an identifier of choice did not violate free speech, and that altering the oath would render it invalid when considering other areas of law that mandated and defined the oath. In every case, the free speech rights of citizens were balanced against continued functional and orderly government. This logic was also present in the ruling in On the Delegate’s Authority to Staff the Executive Branch, which established that a nation’s free speech rights do not allow government officials to act contrary to their oaths, their tasks, or the direction of their superiors if that speech would contradict official government speech and their role as a member of the government. When acting in an official capacity and utilizing the government’s voice, a nation’s own personal voice must be balanced against their official role.
Free speech, then, is not without its limits. However, these rulings were all directly related to government speech or speech that could interfere with proper execution of government business. That is not the case with the petitioner’s situation, which is a resident expressing his opinion in public through two posts on the Regional Message Board and having those posts literally suppressed by two government officials. Given how often suppression is used, and how available it is to a variety of government officials over the years, it is easy to see how this power could have been abused or caused residents to rush to this Court for relief. And yet, for the better part of five years, that has not been the case. Instead, the moderation of the Regional Message Board has grown more sophisticated. Successive delegates have developed and built on the RMB Guidelines, which serve as a kind of equivalent to the more advanced and comprehensive TNP Community Guidelines that exist for The North Pacific’s offsite properties. Customs have developed and expectations have taken root by the residents who frequent the Regional Message Board. To name but one example, many residents, whether officially part of the region’s Gameside Advocates or not, will frequently point out and report instances where residents post more than once on the Regional Message Board successively. The RMB Guidelines specify that such posts may be subject to suppression, as well as any quoting of suppressed posts that violated the guidelines. It is wholly expected by the residents that the suppression will take place, and even that this is a good thing. This aspect of gameside culture is well-known, accepted, and commonplace.
Of course, that does not mean the regular occurrence of suppression is necessarily permissible under this Constitution, but it does underscore that suppression of posts is crucial and essential to the gameside community’s sense of order and how they, like the Regional Assembly on the forum, regulate a civilized place for public discussion that mitigates as much chaos as possible. To say that suppression in all cases is unconstitutional as a violation of free speech would have a similar negative impact on the Regional Message Board as it would on discussions in the Regional Assembly or conversation in the region’s Discord server. This Court looks to its prior rulings to assert that suppression, in general, is not an inherent violation of the Bill of Rights.
On the Constitutionality of Suppressing Specific Forms of Speech
It is not enough to say that suppression of posts is constitutional in the abstract. Prior rulings identify exceptions to what is an otherwise very broad freedom enshrined in our Bill of Rights. While the Delegate and the Lead Gameside Advocate had the authority to suppress the petitioner’s posts and that authority is consistent with the Constitution, the content of the speech is obviously where the line will be drawn. The Delegate would be hard-pressed to get away with this suppression, for instance, if the content of the post was concerned with political speech in the context of regional politics. The very clear exception to the Delegate’s regulation “as they see fit” is prohibiting political speech of this nature. But it is also not enough for the resident doing the posting to claim an otherwise offensive or actionable post is meant to comment on regional politics. The Legal Code has clear provisions permitting the Delegate to eject and ban nations which violate NationStates rules, so simply suppressing such posts is certainly permitted, even if the resident tries to wrap their violative posts in the trappings of “TNP politics.” Admittedly, it is not always easy to determine when this is occurring. Moderation by its nature often involves making judgment calls, and when those calls are challenged, they must be judged on a case by case basis.
While this Court did consider the brief submitted by Dreadton which asserted a Nationstates rule was violated, we believe the asserted offense, flamebaiting, to have been incorrect. Flamebaiting is understood to involve the targeting of a specific player, which the petitioner does not appear to have done. In our opinion, the posts could instead be examples of what NationStates constitutes as trolling. We draw this conclusion based on the nature of the posts themselves, which would invite outrage and disagreement and can clearly be seen to have angered many members of the community, particularly as they were unprompted and do not fit in any proper context that helps make better sense of them. Furthermore, the stated intent of the petitioner in making those posts is also known, as the petitioner admitted that he made the posts out of anger and acknowledges that the posts should not have been made. Naturally there is a great deal of subjective reasoning in determining whether these posts truly violate NationStates rules, but this Court recognizes that in suppressing posts that are deemed to violate NationStates rules, the Delegate would be acting with great restraint, given the Legal Code permits even more drastic action in response. In this particular case, however, neither the Delegate nor the Lead Gameside Advocate asserted the petitioner violated any NationStates rules. In addition, the RMB Guidelines do not contain a list similar to the NationStates rules that the Delegate or his officials could cite as being violated. Any similar list found in the TNP Community Guidelines would also not apply, despite Dreadton’s brief bringing them up, as they are explicitly designed for the region’s offsite properties and enforced by TNP’s administration team.
That being said, in seeking to foster constructive, positive dialogue and keeping the peace in the community, the Delegate has a great deal of leeway in moderating the Regional Message Board. It is not just this Court which believes this. Considering that our laws explicitly allow the Delegate to take action based on perceived violations of NationStates rules, we must also consider the Delegate’s relationship with the typical authority for such moderation of the gameside community, the NationStates moderators themselves. It would be unreasonable to assert that if a NationStates moderator chooses not to respond to a post reported on the Regional Message Board, the post is not actionable. Given the subjective nature of many posts, and the sheer number of them, not to mention the many other regions to moderate outside of The North Pacific, it would be unreasonable to expect every instance of moderation to be handled by NationStates moderators. It is expected for the region itself to pick up the slack: “Players can manage an element of self-moderation over their RMBs, with the ability to suppress posts and eject/ban troublemakers. That means that minor issues are left to founders/delegates to sort out. Regions also have certain cultures to them, reflected on their RMBs.” Moderation goes on to name specific examples of how what is actionable in one community may not be in another. Much of our culture is in our robust legal culture and our broad freedom of speech. But our laws cannot be consistently applied to every single specific case of questionable posts. Every situation requires its own consideration, and sometimes it comes down to our Delegate and regional officers to make the call that would otherwise be for NationStates moderation.
Finally, there is the subject matter of the posts to consider. Clearly these posts were unrelated to any discussion of regional politics and had nothing to do with the player’s engagement with other players in their capacity as a nation residing in the region or the game of NationStates. The subject spoke to issues outside of the game, the kind of subject that often prompts challenges to moderation in the first place. The posts were transphobic in nature, and deeply offensive to many members of the community. When acting in a capacity as a moderator on the Regional Message Board, the Delegate has the most leeway in terms of our region’s laws, as these laws are stretched to their limits when considering subjects that are strictly outside of the framework of the game in which they were created. This does not mean that any action the Delegate or the regional officers take on speech in this context cannot be reviewed by this Court, as there are any number of benign topics that would not warrant shutting down speech. One could imagine a scenario where the oft-cited debate on whether pineapple can be on a pizza might lead the Delegate to suppress posts he disagrees with. This has nothing to do with regional politics after all, and can be seen as a player speaking in their capacity as a person playing NationStates. But as with the old ruling overturned by the Court, the seemingly harmless nature of the posts and the perceived joking on the part of the Delegate, by pretending to have a heavy hand on the topic, would not be permissible limits to speech.
The petitioner’s posts were deliberately inflammatory and designed to inflict distress, they violated the general good-natured character of the community and defied the inclusive and kind environment the Delegate deliberately intended to foster with his policies and practices. The Delegate has the legal authority to regulate the Regional Message Board and the constitutional authority to restrict some forms of speech in the interest of the greater good of the community. And the Delegate has a secondary role as a moderator for the gameside community in addition to or in the absence of NationStates moderation, particularly in the most subjective or low priority situations as with this one. We find that the petitioner’s rights under the Bill of Rights were not violated by the suppression of his posts.
On Extralegal Moderation
As we have already stated, this Court is not the place to adjudicate the specifics of criminal behavior in the context of the Legal Code, which is best suited for a criminal trial. But we are also cognizant of the difficulty in applying the Legal Code to situations which are properly under the jurisdiction of NationStates itself. Everywhere else in the region, such extralegal moderation concerns are rightfully handled by the administrative team and governed by the TNP Community Guidelines. But in the case of the Regional Message Board, extralegal moderation is handled by NationStates moderation. And when they cannot act, only the Delegate and those with the power to suppress, eject, or ban can. This Court cannot speak to constitutionality or criminal concerns in this context and affirms what is already the understanding of The North Pacific’s government and much of its community: there are some problems and actions way outside the scope of our ability to adjudicate, and outside the scope of the region’s Constitution. Action taken by the Delegate or regional officers in response to these issues is not reviewable by this Court and should never be accepted by this Court if presented in the form of a request for review. The problem is telling the difference, a problem exacerbated by the nature of the Regional Message Board.
This Court does not mean to suggest that officials will “know it when they see it,” though the topic and severity of the content is an important guidepost in determining the nature of legally actionable or extralegally actionable posts. Posts clearly related to regional events, government officials, policies, laws, elections, and in the context of the game of NationStates itself, all would be legally actionable. Posts discussing all of the above outside of the context of NationStates, especially referring to players controlling the nations in a strictly “real life” context, are more likely to be extralegally actionable. Extreme language or emotion, particularly if they rise to a threatening or personally concerning level, would also warrant extralegal review. When considering such posts, NationStates rules should be consulted, and TNP Community Guidelines can also serve as a point of reference. If none of these rules are clearly violated, the posts are likely legally actionable, and the Delegate and regional officers may be subject to judicial review. These are hardly exhaustive examples, but we hope they serve as an aid in determining how to approach handling such posts in the future.
On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition
The Court ruled in 2013 that the Bill of Rights established a right to free speech that cannot be infringed, except in emergency situations per Section 11 of the Bill of Rights. This ruling was cited by the petitioner as the primary supporting ruling for his assertion that his freedom of speech rights were violated, and was also addressed by Zyvetskistaahn in his brief. That brief goes on to identify a tension that exists between that ruling and a number of subsequent cases related to free speech. This is an accurate observation. That 2013 ruling was short and to the point, and left absolutely no doubt that freedom of speech could never be abridged. The Court, in properly following the precedent set by this ruling, would have no choice in every subsequent free speech case but to conclude that virtually no limits could be placed on free speech at all. And yet, that is not what happened. In every subsequent ruling on free speech, this Court conveniently forgot that this ruling existed. Instead of an absolute firewall preventing any limitation to speech, we have years of precedent upholding reasonable limits to free speech. Clearly this Court has already effectively overturned this ruling, but it is time to do so properly. We hereby overturn this ruling in its entirety.
The Court arrived at the correct conclusion in that ruling, but did so in an overly broad manner. The law prohibiting sedition was unconstitutional, not because no limits can be placed on free speech at all, but because the limits placed on speech were too great. Such a law would have chilled speech critical of the government, and led residents to doubt what was safe to say publicly. As we noted earlier, the Legal Code clearly protects speech made in the context of TNP politics. Other provisions protect against speech that enters the realm of treason, and the behavior that the sedition law seemed to target can be properly addressed without such an additional provision. With other means available, and an overly broad restriction to political speech that is clearly protected, there was every reason to strike down that law. But there is also every reason to be cautious and deliberate when doing so, in order to avoid being unable to effectively regulate or govern the region when other kinds of harm may be done to the community, and that is what the prior ruling risked doing.
Kronos
Registered
- TNP Nation
- Kronogistan
- Discord
- Kronos#7021
This brings together all of the thoughts we discussed over the course of this case and connects them well. I do not think I can think of anything else that needs to be added or considered.
- TNP Nation
- sil_dorsett
- Discord
- sildorsett
I think the last remaining concern I have is regarding referencing the TNP Community Guidelines when deciding whether to suppress a post. My thinking is that if the government is going to enforce the forum's community guidelines on the RMB in addition to NationStates rules, that should be posted in the RMB Guidelines. (It currently isn't.) However, I think that is something I can just address with Madjack or the next Delegate. Should be a rather quick fix.
Congrats, you pulled me all the way from dissenting to joining.
Congrats, you pulled me all the way from dissenting to joining.
Yes Sil, we can certainly add something to that effect, but I agree it's not something we need to address in the ruling. I think the ruling clearly observes that the guidelines do not have any specific rules whether similar or not to the community guidelines, and it's clear that it is something to reference and not a primary source that governs it. Especially since in that section we're literally referring to "extralegal" moderation.
Are we fine with the flow, the order of the sections? Any thoughts on that? We seem to agree on the conclusion and the reasoning, now I just want to make sure it's polished and pretty. I guess we can aim for posting the ruling tomorrow evening?
Kronos
Registered
- TNP Nation
- Kronogistan
- Discord
- Kronos#7021
I think you took care of the spellings I found earlier so that's good. I like the flow of the sections and their order I think they balance well. Tomorrow evening sounds like an optimal time.
- TNP Nation
- sil_dorsett
- Discord
- sildorsett
I think with the way you wrote it, the order is good. I personally would have tried to end with stating that the petitioner's rights were not violated, since that's the question we were asked to answer, but I understand why you had to do that a little bit early, and trying to reorder just isn't worth the time. I think we're good to release it.
Given the last minute screenshot provided to us in the thread, I felt it would be prudent to incorporate it in the decision. The final draft is below:
The Court took into consideration the inquiry filed here by DiamondComodo
The Court took into consideration the legal brief filed here by Zyvetskistaahn
The Court took into consideration the legal brief filed here, and its addendum here by Dreadton
The Court took into consideration the relevant portions of the Constitution of The North Pacific.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
The Court took into consideration the relevant portion of the NationStates Rules.
The Court took into consideration the relevant portion of the TNP Community Guidelines.
The Court took into consideration the RMB Guidelines.
The Court took into consideration the post made by NationStates moderation here.
The Court took into consideration prior rulings by the Court here, here, here, here, here, and here.
The Court opines the following:
On Standing
The petitioner was the one directly impacted by the government actions and policies that the Court has been asked to review. The petitioner’s posts were suppressed twice, once by Kastonvia, the Lead Gameside Advocate, and once by MadJack, the Delegate. The petitioner was also informed that subsequent posts of that nature, that is, transphobic posts, would be suppressed as well. There is no question of proper standing in this case.
On the Court’s Prior Ruling on the Delegate’s Authority to Staff the Executive Branch
This is not the first time the Court has been asked to review government action that the petitioner alleges violated their freedom of speech. It previously ruled in On the Delegate’s Authority to Staff the Executive Branch that it could not directly answer the question of whether the delegate violated the petitioner’s freedom of speech, so as not to prejudice any future criminal trial, and because the information needed to determine such a question would be best gathered and considered through the criminal trial process. We appreciate that any potential criminal case would undoubtedly take into account this ruling’s determination that MadJack and Kastonvia engaged in unconstitutional actions – as it should. But we must echo Justice Eluvatar from his dissent in that case. The facts that must be discovered and considered in such a criminal trial would aim to prove more than simply whether or not the actions committed were unconstitutional. Such a trial would be concerned with intent and possible deliberate malfeasance. Gross Misconduct is a very different charge than simply identifying whether or not some act is unconstitutional, as it requires looking beyond case law and prior precedent and how the two are applied to what is readily available to us when examining the question brought by the petitioner.
The Court was right to note that a request for review is not the proper venue to consider evidence intended to prove a case at a criminal trial, or to consider the questions relevant to that trial. But that does not preclude this Court from answering the question posed by DiamondComodo, nor does it preclude this Court from examining evidence relevant to determining strictly whether a constitutional violation occurred. The context in which we view what is provided in briefs, or what is publicly available to us, is very different from the context of a criminal trial. The Constitution charges us with answering his query and determining the legality of the actions of government officials. The possibility of a future criminal trial does not make free speech queries immune from this Court’s consideration. As Justice Eluvatar noted, if this Court believes it cannot consider a question, then it should not answer that question. And the Court erred in not doing so back then. We hereby overturn this portion of the ruling. The ruling’s conclusion, that the Delegate has broad authority to manage the executive staff, and that free speech is more limited for government officials, is still correct, and still useful in navigating the question before us in this review.
On the Authority to Suppress Posts
The Legal Code grants broad authority to the Delegate to “regulate the Regional Message Board as they see fit” in its onsite authority section. The petitioner asks the Court to review the use of the suppression power, which is a function of regional officer permissions to help moderate the Regional Message Board in The North Pacific. This message board is located squarely in space controlled not by The North Pacific, but by NationStates itself, and is what constitutes the core and almost entirety of the region’s gameside community. Suppression is included in what the Legal Code refers to as Regional Powers, which also includes border control, or the ability to eject and ban nations from the region. All of these powers are controlled and assigned by the Delegate and may be utilized in executing the Delegate’s regulation of the Regional Message Board. Suppression is a tool successive delegates have made available to every member of their cabinet since the creation of regional officers, and is the primary method of moderating the Regional Message Board, particularly given the Legal Code’s strict limitations to the use of border control powers. This power is not new, and predates the provisions added to the onsite authority laws for regional officers, but its use has spread dramatically since then. The Court recognizes that the Delegate has explicit authority to use these Regional Powers, including suppression. However, the onsite authority provisions also establish a right for judicial review of this regulation, which suggests that despite having the authority to use these powers, the Delegate may nevertheless use them improperly, and in ways contrary to the Bill of Rights.
On the Constitutionality of Suppression of Posts
The Court has ruled twice on the use of suppression power before. In its ruling in On the Delegate’s Authority to Staff the Executive Branch, the Court overturned a previous ruling, On the Suppression of Posts on the Regional Message Board, as it did not accept the reasoning that because the suppression of posts was a result of friendly banter, there was no harm done. In fact, the Court ruled that suppressing posts is inherently harmful, as suppressing free speech in any way is inherently harmful. But the Court has also ruled, repeatedly, that there are sometimes situations where speech may be restricted. What these rulings have in common is that speech is limited when allowing unfettered free speech would cause greater harm to the community or the proper functioning of the government. Free speech concerns must be balanced against other rights, and residents are not free to say whatever they want regardless of the context. The Court ruled in On the Speaker’s Power to End Debate that ending debate would necessarily restrict the free speech of citizens, but was nevertheless permitted because those free speech rights must be balanced against maintaining order in the Regional Assembly and fostering civilized debate, and reiterated that position in On the Use of the Speaker’s Power to End Debate and On the Speaker’s Power to Schedule Votes. It ruled in On Alterations to the Citizenship Oath that requiring the citizenship oath to be taken as written without permitting an identifier of choice did not violate free speech, and that altering the oath would render it invalid when considering other areas of law that mandated and defined the oath. In every case, the free speech rights of citizens were balanced against continued functional and orderly government. This logic was also present in the ruling in On the Delegate’s Authority to Staff the Executive Branch, which established that a nation’s free speech rights do not allow government officials to act contrary to their oaths, their tasks, or the direction of their superiors if that speech would contradict official government speech and their role as a member of the government. When acting in an official capacity and utilizing the government’s voice, a nation’s own personal voice must be balanced against their official role.
Free speech, then, is not without its limits. However, these rulings were all directly related to government speech or speech that could interfere with proper execution of government business. That is not the case with the petitioner’s situation, which is a resident expressing his opinion in public through two posts on the Regional Message Board and having those posts literally suppressed by two government officials. Given how often suppression is used, and how available it is to a variety of government officials over the years, it is easy to see how this power could have been abused or caused residents to rush to this Court for relief. And yet, for the better part of five years, that has not been the case. Instead, the moderation of the Regional Message Board has grown more sophisticated. Successive delegates have developed and built on the RMB Guidelines, which serve as a kind of equivalent to the more advanced and comprehensive TNP Community Guidelines that exist for The North Pacific’s offsite properties. Customs have developed and expectations have taken root by the residents who frequent the Regional Message Board. To name but one example, many residents, whether officially part of the region’s Gameside Advocates or not, will frequently point out and report instances where residents post more than once on the Regional Message Board successively. The RMB Guidelines specify that such posts may be subject to suppression, as well as any quoting of suppressed posts that violated the guidelines. It is wholly expected by the residents that the suppression will take place, and even that this is a good thing. This aspect of gameside culture is well-known, accepted, and commonplace.
Of course, that does not mean the regular occurrence of suppression is necessarily permissible under this Constitution, but it does underscore that suppression of posts is crucial and essential to the gameside community’s sense of order and how they, like the Regional Assembly on the forum, regulate a civilized place for public discussion that mitigates as much chaos as possible. To say that suppression in all cases is unconstitutional as a violation of free speech would have a similar negative impact on the Regional Message Board as it would on discussions in the Regional Assembly or conversation in the region’s Discord server. This Court looks to its prior rulings to assert that suppression, in general, is not an inherent violation of the Bill of Rights.
On the Constitutionality of Suppressing Specific Forms of Speech
It is not enough to say that suppression of posts is constitutional in the abstract. Prior rulings identify exceptions to what is an otherwise very broad freedom enshrined in our Bill of Rights. While the Delegate and the Lead Gameside Advocate had the authority to suppress the petitioner’s posts and that authority is consistent with the Constitution, the content of the speech is obviously where the line will be drawn. The Delegate would be hard-pressed to get away with this suppression, for instance, if the content of the post was concerned with political speech in the context of regional politics. The very clear exception to the Delegate’s regulation “as they see fit” is prohibiting political speech of this nature. But it is also not enough for the resident doing the posting to claim an otherwise offensive or actionable post is meant to comment on regional politics. The Legal Code has clear provisions permitting the Delegate to eject and ban nations which violate NationStates rules, so simply suppressing such posts is certainly permitted, even if the resident tries to wrap their violative posts in the trappings of “TNP politics.” Admittedly, it is not always easy to determine when this is occurring. Moderation by its nature often involves making judgment calls, and when those calls are challenged, they must be judged on a case by case basis.
While this Court did consider the brief submitted by Dreadton which asserted a Nationstates rule was violated, we believe the asserted offense, flamebaiting, to have been incorrect. Flamebaiting is understood to involve the targeting of a specific player, which the petitioner does not appear to have done. In our opinion, the posts could instead be examples of what NationStates constitutes as trolling. We draw this conclusion based on the nature of the posts themselves, which would invite outrage and disagreement and can clearly be seen to have angered many members of the community, particularly as they were unprompted and do not fit in any proper context that helps make better sense of them. Furthermore, the stated intent of the petitioner in making those posts is also known, as the petitioner admitted that he made the posts out of anger and acknowledges that the posts should not have been made. Naturally there is a great deal of subjective reasoning in determining whether these posts truly violate NationStates rules, but this Court recognizes that in suppressing posts that are deemed to violate NationStates rules, the Delegate would be acting with great restraint, given the Legal Code permits even more drastic action in response. In this particular case, however, neither the Delegate nor the Lead Gameside Advocate asserted the petitioner violated any NationStates rules. In addition, the RMB Guidelines do not contain a list similar to the NationStates rules that the Delegate or his officials could cite as being violated. Any similar list found in the TNP Community Guidelines would also not apply, despite Dreadton’s brief bringing them up, as they are explicitly designed for the region’s offsite properties and enforced by TNP’s administration team.
That being said, in seeking to foster constructive, positive dialogue and keeping the peace in the community, the Delegate has a great deal of leeway in moderating the Regional Message Board. It is not just this Court which believes this. Considering that our laws explicitly allow the Delegate to take action based on perceived violations of NationStates rules, we must also consider the Delegate’s relationship with the typical authority for such moderation of the gameside community, the NationStates moderators themselves. It would be unreasonable to assert that if a NationStates moderator chooses not to respond to a post reported on the Regional Message Board, the post is not actionable. Given the subjective nature of many posts, and the sheer number of them, not to mention the many other regions to moderate outside of The North Pacific, it would be unreasonable to expect every instance of moderation to be handled by NationStates moderators. It is expected for the region itself to pick up the slack, as can be seen in a post made by Sedgistan on the NationStates forum: “Players can manage an element of self-moderation over their RMBs, with the ability to suppress posts and eject/ban troublemakers. That means that minor issues are left to founders/delegates to sort out." We also know this view is still held by moderation all these years later, as was evident by the recent telegram shared with the Court by Dreadton and Bootsie. Moderation held that they only get involved for “egregious” spam, one of the most frequent causes of reports to moderation. Sedgistan goes on to say that "Regions also have certain cultures to them, reflected on their RMBs," and then names specific examples of how what is actionable in one community may not be in another. Much of our culture is in our robust legal culture and our broad freedom of speech. But our laws cannot be consistently applied to every single specific case of questionable posts. Every situation requires its own consideration, and sometimes it comes down to our Delegate and regional officers to make the call that would otherwise be for NationStates moderation.
Finally, there is the subject matter of the posts to consider. Clearly these posts were unrelated to any discussion of regional politics and had nothing to do with the player’s engagement with other players in their capacity as a nation residing in the region or the game of NationStates. The subject spoke to issues outside of the game, the kind of subject that often prompts challenges to moderation in the first place. The posts were transphobic in nature, and deeply offensive to many members of the community. When acting in a capacity as a moderator on the Regional Message Board, the Delegate has the most leeway in terms of our region’s laws, as these laws are stretched to their limits when considering subjects that are strictly outside of the framework of the game in which they were created. This does not mean that any action the Delegate or the regional officers take on speech in this context cannot be reviewed by this Court, as there are any number of benign topics that would not warrant shutting down speech. One could imagine a scenario where the oft-cited debate on whether pineapple can be on a pizza might lead the Delegate to suppress posts he disagrees with. This has nothing to do with regional politics after all, and can be seen as a player speaking in their capacity as a person playing NationStates. But as with the old ruling overturned by the Court, the seemingly harmless nature of the posts and the perceived joking on the part of the Delegate, by pretending to have a heavy hand on the topic, would not be permissible limits to speech.
The petitioner’s posts were deliberately inflammatory and designed to inflict distress, they violated the general good-natured character of the community and defied the inclusive and kind environment the Delegate deliberately intended to foster with his policies and practices. The Delegate has the legal authority to regulate the Regional Message Board and the constitutional authority to restrict some forms of speech in the interest of the greater good of the community. And the Delegate has a secondary role as a moderator for the gameside community in addition to or in the absence of NationStates moderation, particularly in the most subjective or low priority situations as with this one. We find that the petitioner’s rights under the Bill of Rights were not violated by the suppression of his posts.
On Extralegal Moderation
As we have already stated, this Court is not the place to adjudicate the specifics of criminal behavior in the context of the Legal Code, which is best suited for a criminal trial. But we are also cognizant of the difficulty in applying the Legal Code to situations which are properly under the jurisdiction of NationStates itself. Everywhere else in the region, such extralegal moderation concerns are rightfully handled by the administrative team and governed by the TNP Community Guidelines. But in the case of the Regional Message Board, extralegal moderation is handled by NationStates moderation. And when they cannot act, only the Delegate and those with the power to suppress, eject, or ban can. This Court cannot speak to constitutionality or criminal concerns in this context and affirms what is already the understanding of The North Pacific’s government and much of its community: there are some problems and actions way outside the scope of our ability to adjudicate, and outside the scope of the region’s Constitution. Action taken by the Delegate or regional officers in response to these issues is not reviewable by this Court and should never be accepted by this Court if presented in the form of a request for review. The problem is telling the difference, a problem exacerbated by the nature of the Regional Message Board.
This Court does not mean to suggest that officials will “know it when they see it,” though the topic and severity of the content is an important guidepost in determining the nature of legally actionable or extralegally actionable posts. Posts clearly related to regional events, government officials, policies, laws, elections, and in the context of the game of NationStates itself, all would be legally actionable. Posts discussing all of the above outside of the context of NationStates, especially referring to players controlling the nations in a strictly “real life” context, are more likely to be extralegally actionable. Extreme language or emotion, particularly if they rise to a threatening or personally concerning level, would also warrant extralegal review. When considering such posts, NationStates rules should be consulted, and TNP Community Guidelines can also serve as a point of reference. If none of these rules are clearly violated, the posts are likely legally actionable, and the Delegate and regional officers may be subject to judicial review. These are hardly exhaustive examples, but we hope they serve as an aid in determining how to approach handling such posts in the future.
On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition
The Court ruled in 2013 that the Bill of Rights established a right to free speech that cannot be infringed, except in emergency situations per Section 11 of the Bill of Rights. This ruling was cited by the petitioner as the primary supporting ruling for his assertion that his freedom of speech rights were violated, and was also addressed by Zyvetskistaahn in his brief. That brief goes on to identify a tension that exists between that ruling and a number of subsequent cases related to free speech. This is an accurate observation. That 2013 ruling was short and to the point, and left absolutely no doubt that freedom of speech could never be abridged. The Court, in properly following the precedent set by this ruling, would have no choice in every subsequent free speech case but to conclude that virtually no limits could be placed on free speech at all. And yet, that is not what happened. In every subsequent ruling on free speech, this Court conveniently forgot that this ruling existed. Instead of an absolute firewall preventing any limitation to speech, we have years of precedent upholding reasonable limits to free speech. Clearly this Court has already effectively overturned this ruling, but it is time to do so properly. We hereby overturn this ruling in its entirety.
The Court arrived at the correct conclusion in that ruling, but did so in an overly broad manner. The law prohibiting sedition was unconstitutional, not because no limits can be placed on free speech at all, but because the limits placed on speech were too great. Such a law would have chilled speech critical of the government, and led residents to doubt what was safe to say publicly. As we noted earlier, the Legal Code clearly protects speech made in the context of TNP politics. Other provisions protect against speech that enters the realm of treason, and the behavior that the sedition law seemed to target can be properly addressed without such an additional provision. With other means available, and an overly broad restriction to political speech that is clearly protected, there was every reason to strike down that law. But there is also every reason to be cautious and deliberate when doing so, in order to avoid being unable to effectively regulate or govern the region when other kinds of harm may be done to the community, and that is what the prior ruling risked doing.
Ruling of the Court of The North Pacific
In regards to the Judicial Inquiry filed by DiamondComodo on the Regulation of the Regional Message Board.
Opinion drafted by Pallaith, joined by Kronos and Sil Dorsett
In regards to the Judicial Inquiry filed by DiamondComodo on the Regulation of the Regional Message Board.
Opinion drafted by Pallaith, joined by Kronos and Sil Dorsett
The Court took into consideration the inquiry filed here by DiamondComodo
The Court took into consideration the legal brief filed here by Zyvetskistaahn
The Court took into consideration the legal brief filed here, and its addendum here by Dreadton
The Court took into consideration the relevant portions of the Constitution of The North Pacific.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
The Court took into consideration the relevant portion of the NationStates Rules.
The Court took into consideration the relevant portion of the TNP Community Guidelines.
The Court took into consideration the RMB Guidelines.
The Court took into consideration the post made by NationStates moderation here.
The Court took into consideration prior rulings by the Court here, here, here, here, here, and here.
The Court opines the following:
On Standing
The petitioner was the one directly impacted by the government actions and policies that the Court has been asked to review. The petitioner’s posts were suppressed twice, once by Kastonvia, the Lead Gameside Advocate, and once by MadJack, the Delegate. The petitioner was also informed that subsequent posts of that nature, that is, transphobic posts, would be suppressed as well. There is no question of proper standing in this case.
On the Court’s Prior Ruling on the Delegate’s Authority to Staff the Executive Branch
This is not the first time the Court has been asked to review government action that the petitioner alleges violated their freedom of speech. It previously ruled in On the Delegate’s Authority to Staff the Executive Branch that it could not directly answer the question of whether the delegate violated the petitioner’s freedom of speech, so as not to prejudice any future criminal trial, and because the information needed to determine such a question would be best gathered and considered through the criminal trial process. We appreciate that any potential criminal case would undoubtedly take into account this ruling’s determination that MadJack and Kastonvia engaged in unconstitutional actions – as it should. But we must echo Justice Eluvatar from his dissent in that case. The facts that must be discovered and considered in such a criminal trial would aim to prove more than simply whether or not the actions committed were unconstitutional. Such a trial would be concerned with intent and possible deliberate malfeasance. Gross Misconduct is a very different charge than simply identifying whether or not some act is unconstitutional, as it requires looking beyond case law and prior precedent and how the two are applied to what is readily available to us when examining the question brought by the petitioner.
The Court was right to note that a request for review is not the proper venue to consider evidence intended to prove a case at a criminal trial, or to consider the questions relevant to that trial. But that does not preclude this Court from answering the question posed by DiamondComodo, nor does it preclude this Court from examining evidence relevant to determining strictly whether a constitutional violation occurred. The context in which we view what is provided in briefs, or what is publicly available to us, is very different from the context of a criminal trial. The Constitution charges us with answering his query and determining the legality of the actions of government officials. The possibility of a future criminal trial does not make free speech queries immune from this Court’s consideration. As Justice Eluvatar noted, if this Court believes it cannot consider a question, then it should not answer that question. And the Court erred in not doing so back then. We hereby overturn this portion of the ruling. The ruling’s conclusion, that the Delegate has broad authority to manage the executive staff, and that free speech is more limited for government officials, is still correct, and still useful in navigating the question before us in this review.
On the Authority to Suppress Posts
The Legal Code grants broad authority to the Delegate to “regulate the Regional Message Board as they see fit” in its onsite authority section. The petitioner asks the Court to review the use of the suppression power, which is a function of regional officer permissions to help moderate the Regional Message Board in The North Pacific. This message board is located squarely in space controlled not by The North Pacific, but by NationStates itself, and is what constitutes the core and almost entirety of the region’s gameside community. Suppression is included in what the Legal Code refers to as Regional Powers, which also includes border control, or the ability to eject and ban nations from the region. All of these powers are controlled and assigned by the Delegate and may be utilized in executing the Delegate’s regulation of the Regional Message Board. Suppression is a tool successive delegates have made available to every member of their cabinet since the creation of regional officers, and is the primary method of moderating the Regional Message Board, particularly given the Legal Code’s strict limitations to the use of border control powers. This power is not new, and predates the provisions added to the onsite authority laws for regional officers, but its use has spread dramatically since then. The Court recognizes that the Delegate has explicit authority to use these Regional Powers, including suppression. However, the onsite authority provisions also establish a right for judicial review of this regulation, which suggests that despite having the authority to use these powers, the Delegate may nevertheless use them improperly, and in ways contrary to the Bill of Rights.
On the Constitutionality of Suppression of Posts
The Court has ruled twice on the use of suppression power before. In its ruling in On the Delegate’s Authority to Staff the Executive Branch, the Court overturned a previous ruling, On the Suppression of Posts on the Regional Message Board, as it did not accept the reasoning that because the suppression of posts was a result of friendly banter, there was no harm done. In fact, the Court ruled that suppressing posts is inherently harmful, as suppressing free speech in any way is inherently harmful. But the Court has also ruled, repeatedly, that there are sometimes situations where speech may be restricted. What these rulings have in common is that speech is limited when allowing unfettered free speech would cause greater harm to the community or the proper functioning of the government. Free speech concerns must be balanced against other rights, and residents are not free to say whatever they want regardless of the context. The Court ruled in On the Speaker’s Power to End Debate that ending debate would necessarily restrict the free speech of citizens, but was nevertheless permitted because those free speech rights must be balanced against maintaining order in the Regional Assembly and fostering civilized debate, and reiterated that position in On the Use of the Speaker’s Power to End Debate and On the Speaker’s Power to Schedule Votes. It ruled in On Alterations to the Citizenship Oath that requiring the citizenship oath to be taken as written without permitting an identifier of choice did not violate free speech, and that altering the oath would render it invalid when considering other areas of law that mandated and defined the oath. In every case, the free speech rights of citizens were balanced against continued functional and orderly government. This logic was also present in the ruling in On the Delegate’s Authority to Staff the Executive Branch, which established that a nation’s free speech rights do not allow government officials to act contrary to their oaths, their tasks, or the direction of their superiors if that speech would contradict official government speech and their role as a member of the government. When acting in an official capacity and utilizing the government’s voice, a nation’s own personal voice must be balanced against their official role.
Free speech, then, is not without its limits. However, these rulings were all directly related to government speech or speech that could interfere with proper execution of government business. That is not the case with the petitioner’s situation, which is a resident expressing his opinion in public through two posts on the Regional Message Board and having those posts literally suppressed by two government officials. Given how often suppression is used, and how available it is to a variety of government officials over the years, it is easy to see how this power could have been abused or caused residents to rush to this Court for relief. And yet, for the better part of five years, that has not been the case. Instead, the moderation of the Regional Message Board has grown more sophisticated. Successive delegates have developed and built on the RMB Guidelines, which serve as a kind of equivalent to the more advanced and comprehensive TNP Community Guidelines that exist for The North Pacific’s offsite properties. Customs have developed and expectations have taken root by the residents who frequent the Regional Message Board. To name but one example, many residents, whether officially part of the region’s Gameside Advocates or not, will frequently point out and report instances where residents post more than once on the Regional Message Board successively. The RMB Guidelines specify that such posts may be subject to suppression, as well as any quoting of suppressed posts that violated the guidelines. It is wholly expected by the residents that the suppression will take place, and even that this is a good thing. This aspect of gameside culture is well-known, accepted, and commonplace.
Of course, that does not mean the regular occurrence of suppression is necessarily permissible under this Constitution, but it does underscore that suppression of posts is crucial and essential to the gameside community’s sense of order and how they, like the Regional Assembly on the forum, regulate a civilized place for public discussion that mitigates as much chaos as possible. To say that suppression in all cases is unconstitutional as a violation of free speech would have a similar negative impact on the Regional Message Board as it would on discussions in the Regional Assembly or conversation in the region’s Discord server. This Court looks to its prior rulings to assert that suppression, in general, is not an inherent violation of the Bill of Rights.
On the Constitutionality of Suppressing Specific Forms of Speech
It is not enough to say that suppression of posts is constitutional in the abstract. Prior rulings identify exceptions to what is an otherwise very broad freedom enshrined in our Bill of Rights. While the Delegate and the Lead Gameside Advocate had the authority to suppress the petitioner’s posts and that authority is consistent with the Constitution, the content of the speech is obviously where the line will be drawn. The Delegate would be hard-pressed to get away with this suppression, for instance, if the content of the post was concerned with political speech in the context of regional politics. The very clear exception to the Delegate’s regulation “as they see fit” is prohibiting political speech of this nature. But it is also not enough for the resident doing the posting to claim an otherwise offensive or actionable post is meant to comment on regional politics. The Legal Code has clear provisions permitting the Delegate to eject and ban nations which violate NationStates rules, so simply suppressing such posts is certainly permitted, even if the resident tries to wrap their violative posts in the trappings of “TNP politics.” Admittedly, it is not always easy to determine when this is occurring. Moderation by its nature often involves making judgment calls, and when those calls are challenged, they must be judged on a case by case basis.
While this Court did consider the brief submitted by Dreadton which asserted a Nationstates rule was violated, we believe the asserted offense, flamebaiting, to have been incorrect. Flamebaiting is understood to involve the targeting of a specific player, which the petitioner does not appear to have done. In our opinion, the posts could instead be examples of what NationStates constitutes as trolling. We draw this conclusion based on the nature of the posts themselves, which would invite outrage and disagreement and can clearly be seen to have angered many members of the community, particularly as they were unprompted and do not fit in any proper context that helps make better sense of them. Furthermore, the stated intent of the petitioner in making those posts is also known, as the petitioner admitted that he made the posts out of anger and acknowledges that the posts should not have been made. Naturally there is a great deal of subjective reasoning in determining whether these posts truly violate NationStates rules, but this Court recognizes that in suppressing posts that are deemed to violate NationStates rules, the Delegate would be acting with great restraint, given the Legal Code permits even more drastic action in response. In this particular case, however, neither the Delegate nor the Lead Gameside Advocate asserted the petitioner violated any NationStates rules. In addition, the RMB Guidelines do not contain a list similar to the NationStates rules that the Delegate or his officials could cite as being violated. Any similar list found in the TNP Community Guidelines would also not apply, despite Dreadton’s brief bringing them up, as they are explicitly designed for the region’s offsite properties and enforced by TNP’s administration team.
That being said, in seeking to foster constructive, positive dialogue and keeping the peace in the community, the Delegate has a great deal of leeway in moderating the Regional Message Board. It is not just this Court which believes this. Considering that our laws explicitly allow the Delegate to take action based on perceived violations of NationStates rules, we must also consider the Delegate’s relationship with the typical authority for such moderation of the gameside community, the NationStates moderators themselves. It would be unreasonable to assert that if a NationStates moderator chooses not to respond to a post reported on the Regional Message Board, the post is not actionable. Given the subjective nature of many posts, and the sheer number of them, not to mention the many other regions to moderate outside of The North Pacific, it would be unreasonable to expect every instance of moderation to be handled by NationStates moderators. It is expected for the region itself to pick up the slack, as can be seen in a post made by Sedgistan on the NationStates forum: “Players can manage an element of self-moderation over their RMBs, with the ability to suppress posts and eject/ban troublemakers. That means that minor issues are left to founders/delegates to sort out." We also know this view is still held by moderation all these years later, as was evident by the recent telegram shared with the Court by Dreadton and Bootsie. Moderation held that they only get involved for “egregious” spam, one of the most frequent causes of reports to moderation. Sedgistan goes on to say that "Regions also have certain cultures to them, reflected on their RMBs," and then names specific examples of how what is actionable in one community may not be in another. Much of our culture is in our robust legal culture and our broad freedom of speech. But our laws cannot be consistently applied to every single specific case of questionable posts. Every situation requires its own consideration, and sometimes it comes down to our Delegate and regional officers to make the call that would otherwise be for NationStates moderation.
Finally, there is the subject matter of the posts to consider. Clearly these posts were unrelated to any discussion of regional politics and had nothing to do with the player’s engagement with other players in their capacity as a nation residing in the region or the game of NationStates. The subject spoke to issues outside of the game, the kind of subject that often prompts challenges to moderation in the first place. The posts were transphobic in nature, and deeply offensive to many members of the community. When acting in a capacity as a moderator on the Regional Message Board, the Delegate has the most leeway in terms of our region’s laws, as these laws are stretched to their limits when considering subjects that are strictly outside of the framework of the game in which they were created. This does not mean that any action the Delegate or the regional officers take on speech in this context cannot be reviewed by this Court, as there are any number of benign topics that would not warrant shutting down speech. One could imagine a scenario where the oft-cited debate on whether pineapple can be on a pizza might lead the Delegate to suppress posts he disagrees with. This has nothing to do with regional politics after all, and can be seen as a player speaking in their capacity as a person playing NationStates. But as with the old ruling overturned by the Court, the seemingly harmless nature of the posts and the perceived joking on the part of the Delegate, by pretending to have a heavy hand on the topic, would not be permissible limits to speech.
The petitioner’s posts were deliberately inflammatory and designed to inflict distress, they violated the general good-natured character of the community and defied the inclusive and kind environment the Delegate deliberately intended to foster with his policies and practices. The Delegate has the legal authority to regulate the Regional Message Board and the constitutional authority to restrict some forms of speech in the interest of the greater good of the community. And the Delegate has a secondary role as a moderator for the gameside community in addition to or in the absence of NationStates moderation, particularly in the most subjective or low priority situations as with this one. We find that the petitioner’s rights under the Bill of Rights were not violated by the suppression of his posts.
On Extralegal Moderation
As we have already stated, this Court is not the place to adjudicate the specifics of criminal behavior in the context of the Legal Code, which is best suited for a criminal trial. But we are also cognizant of the difficulty in applying the Legal Code to situations which are properly under the jurisdiction of NationStates itself. Everywhere else in the region, such extralegal moderation concerns are rightfully handled by the administrative team and governed by the TNP Community Guidelines. But in the case of the Regional Message Board, extralegal moderation is handled by NationStates moderation. And when they cannot act, only the Delegate and those with the power to suppress, eject, or ban can. This Court cannot speak to constitutionality or criminal concerns in this context and affirms what is already the understanding of The North Pacific’s government and much of its community: there are some problems and actions way outside the scope of our ability to adjudicate, and outside the scope of the region’s Constitution. Action taken by the Delegate or regional officers in response to these issues is not reviewable by this Court and should never be accepted by this Court if presented in the form of a request for review. The problem is telling the difference, a problem exacerbated by the nature of the Regional Message Board.
This Court does not mean to suggest that officials will “know it when they see it,” though the topic and severity of the content is an important guidepost in determining the nature of legally actionable or extralegally actionable posts. Posts clearly related to regional events, government officials, policies, laws, elections, and in the context of the game of NationStates itself, all would be legally actionable. Posts discussing all of the above outside of the context of NationStates, especially referring to players controlling the nations in a strictly “real life” context, are more likely to be extralegally actionable. Extreme language or emotion, particularly if they rise to a threatening or personally concerning level, would also warrant extralegal review. When considering such posts, NationStates rules should be consulted, and TNP Community Guidelines can also serve as a point of reference. If none of these rules are clearly violated, the posts are likely legally actionable, and the Delegate and regional officers may be subject to judicial review. These are hardly exhaustive examples, but we hope they serve as an aid in determining how to approach handling such posts in the future.
On the Court’s Prior Ruling on the Constitutionality of Prohibiting Sedition
The Court ruled in 2013 that the Bill of Rights established a right to free speech that cannot be infringed, except in emergency situations per Section 11 of the Bill of Rights. This ruling was cited by the petitioner as the primary supporting ruling for his assertion that his freedom of speech rights were violated, and was also addressed by Zyvetskistaahn in his brief. That brief goes on to identify a tension that exists between that ruling and a number of subsequent cases related to free speech. This is an accurate observation. That 2013 ruling was short and to the point, and left absolutely no doubt that freedom of speech could never be abridged. The Court, in properly following the precedent set by this ruling, would have no choice in every subsequent free speech case but to conclude that virtually no limits could be placed on free speech at all. And yet, that is not what happened. In every subsequent ruling on free speech, this Court conveniently forgot that this ruling existed. Instead of an absolute firewall preventing any limitation to speech, we have years of precedent upholding reasonable limits to free speech. Clearly this Court has already effectively overturned this ruling, but it is time to do so properly. We hereby overturn this ruling in its entirety.
The Court arrived at the correct conclusion in that ruling, but did so in an overly broad manner. The law prohibiting sedition was unconstitutional, not because no limits can be placed on free speech at all, but because the limits placed on speech were too great. Such a law would have chilled speech critical of the government, and led residents to doubt what was safe to say publicly. As we noted earlier, the Legal Code clearly protects speech made in the context of TNP politics. Other provisions protect against speech that enters the realm of treason, and the behavior that the sedition law seemed to target can be properly addressed without such an additional provision. With other means available, and an overly broad restriction to political speech that is clearly protected, there was every reason to strike down that law. But there is also every reason to be cautious and deliberate when doing so, in order to avoid being unable to effectively regulate or govern the region when other kinds of harm may be done to the community, and that is what the prior ruling risked doing.
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- TNP Nation
- sil_dorsett
- Discord
- sildorsett
A nitpick to add a " in the correct spot. I would also not say "earlier today."
“Players can manage an element of self-moderation over their RMBs, with the ability to suppress posts and eject/ban troublemakers. That means that minor issues are left to founders/delegates to sort out." We also know this view is still held by moderation all these years later, as was evident by the recent telegram shared with the Court by Dreadton and Bootsie.
“Players can manage an element of self-moderation over their RMBs, with the ability to suppress posts and eject/ban troublemakers. That means that minor issues are left to founders/delegates to sort out." We also know this view is still held by moderation all these years later, as was evident by the recent telegram shared with the Court by Dreadton and Bootsie.
- TNP Nation
- sil_dorsett
- Discord
- sildorsett
Nothing further.