Ruling of the Court of The North Pacific
On the Regulation of the Regional Message Board
Opinion drafted by Chief Justice Pallaith, joined by Justices 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.
Article 1. Bill of Rights
1. All nations are guaranteed the rights defined by the Bill of Rights.
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Article 6. General Provisions
17. No law or government policy may contradict this constitution.
The Court took into consideration the relevant portion of the Bill of Rights of The North Pacific.
2. Each Nation's rights to free speech, free press, and the free expression of religion shall not be infringed, and shall be encouraged, by the governmental authorities of the region. Each Nation has the right to assemble, and to petition the governmental authorities of the region, including the WA Delegate, for the redress of grievances. The governmental authorities of the region shall act only in the best interests of the Region, as permitted and limited under the Constitution.
11. No governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code. In the event of an actual emergency, the governmental authorities of the region, with the express consent of the Nations of the region or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of the Constitution.
The Court took into consideration the relevant portion of the Legal Code of The North Pacific.
Chapter 7: Executive Government
Section 7.3: Onsite Authority
11. Violators of NationStates rules, or residents banned offsite by forum administration, may be subject to summary ejection or banning.
12. Residents banned on the basis of forum bans imposed by forum administration may not be banned for longer than the length of the ban imposed by forum administration.
13. Nations recruiting for other regions may be subject to summary ejection or banning.
14. Nations for which the Court has issued an indictment permitting it may be ejected or banned.
15. Nations that have been so sentenced by the Court will be ejected or banned.
16. The official performing an ejection or ban will promptly inform the region and Government.
17. The Serving Delegate may regulate the Regional Message Board as they see fit.
18. Such regulations may not prohibit speech which is in the context of TNP politics.
19. All actions of the WA Delegate, the Serving Delegate, or of their appointed Regional Officers related to this section will be subject to judicial review.
The Court took into consideration the relevant portion of the
NationStates Rules.
Flamebaiting: Posts that are made with the aim of angering someone indirectly. Not outright flame, but still liable to bring angry replies. Flame baiting is a far more subtle and covert action; it is an underhanded tactic that is designed to provoke a response from another player. It's in the same context of trolling but with flamebaiting it's just the one person. Also included under flamebaiting is malicious quote editing, changing the contents of a quoted post without showing the original text, either through color changes or strike-out.
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Trolling/Baiting/Gloating: Trolling is defined as posts that are made with the aim of angering people. (like 'ALL JEWS ARE [insert vile comment here]' for example). Someone disagreeing with you does not equate to trolling. Intent is incredibly important and will be judged by the moderators to the best of their abilities. Honest belief does not excuse trolling. Disagreements are expected and conducting yourself in a civil manner is ideal. Trollbaiting is the action of making posts that attract trolls. A prime example of trollbaiting would be gloating over the results of an election.
The Court took into consideration the relevant portion of the
TNP Community Guidelines.
The 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). If The North Pacific expands into additional platforms in the future, the Community Rules will also apply to them without first requiring specific enumeration in this document. Anyone who violates this code of conduct may be warned or banned from these spaces by the decision of the moderation team.
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The North Pacific will not tolerate the promotion of hate or bigotry of any kind, nor will we permit any behavior that places other members of our community at risk. Anybody found to be engaging in such behavior may be subject to immediate and permanent removal from all community spaces. The below list of examples is not exhaustive, but provides a baseline picture:
Disparaging comments or slurs related to gender, gender identity and expression, sexual orientation, disability, mental illness, neuro(a)typicality, physical appearance, pregnancy status, veteran status, marital status, body size, age, race, national origin, ethnic origin, nationality, immigration status, language, religion or lack thereof, or other identity marker.
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.
Case thread
Ruling delivered on April 29, 2022.
