Cross-Party Joint Statement

[Miestră Schivă, UrN-GC]

What would you suggest the legal basis of judicial review of - let's take a hypothetical - a moderator's decision to remove a post for harassment be, Dien?

As far as I can see, Title J of El Lexhatx and the First Covenant of Rights and Freedoms are already adequate for our purposes.

[Munditenens Tresplet]

I disagree that just anyone could sue. This isn't only our public forum, but it is government owned. In theory, the government could simply make a case that as a government owned board, they can do whatever they want outside of review. (Making a case similar to government speech on license plates, for example.) In other words, in the absence of express text otherwise, who knows whether the Cort wouldn't just toss out the suit without reaching the merits?

There is absolutely nothing wrong with one line in the law that says "Appeals of the decisions of the SoS may be taken to the Cort, who will conduct a de novo review of the case and/or determine whether the SoS' actions were an appropriate exercise of discretion, and properly weighed the restricted citizen's right to free speech versus the victim's right to be free of harassment."

I mean, is there a Talossan Administrative Procedure Act?

[Miestră Schivă, UrN-GC]

I disagree that just anyone could sue. This isn't only our public forum, but it is government owned. In theory, the government could simply make a case that as a government owned board, they can do whatever they want outside of review.

It's precisely because it is a government-run forum (under Title J) that moderators have to provide free speech protections under the First Covenant. If Witt were a private forum no-one could tell the moderators to do anything they didn't want to.

Again, I'd have to ask you what you would envisage the legal substance of "appeals" to the judiciary as being.

[Munditenens Tresplet]

I disagree that just anyone could sue. This isn't only our public forum, but it is government owned. In theory, the government could simply make a case that as a government owned board, they can do whatever they want outside of review.

It's precisely because it is a government-run forum (under Title J) that moderators have to provide free speech protections under the First Covenant. If Witt were a private forum no-one could tell the moderators to do anything they didn't want to.

The government could make the case that any text written on its government owned board could be detrimental to the government by attributing the speech to it. Therefore they have the ability to restrict or remove anything, without ensuring First Covenant protections, because otherwise it would be the government's right to speech that is infringed.

This is why we see governments being allowed to restrict custom license plates like "FART123" or the like.

[Miestră Schivă, UrN-GC]

I think we're getting off track here, because - as far as I understand @Baron Alexandreu Davinescu - he's not actually talking about changing the law, but about setting new Wittenberg administration policy within existing law? Are you saying you also want amendments of some kind to Title J of El Lexhatx?

[Munditenens Tresplet]

Even to set appeals to the SoS, we'd need some change to existing law.

I think we need to codify the rules of Witt within law if we're going to exercise any government enforcement powers. Why couldn't Witt rules just be changed later at the whim of one person otherwise? This may never have been done before because Witt was hosted privately; but this is no longer the case.

I circle back to my original thoughts. We can use Sense of the Ziu to express our priority desires, but we still need to update our existing law.

Codify Witt rules
Codify appeal procedures
Sense of the Ziu expressing enforcement priorities

Because without law change, strong, clear, no room for gray area law change, I'm not sure I really understand the point of the summit is. I thought the point was to strengthen our position and use law to actually prevent future harassment.

[Baron Alexandreu Davinescu]

What we're talking about here is kind of the equivalent of being temporarily removed from a public space for being drunk and disorderly, a public nuisance, or engaging in other behaviors that make it impossible for other people to be in that public space. Anyone who feels like the penalty was unfairly applied, and whose appeal to the King was denied, would have extremely clear grounds to sue based on their rights to free assembly and free speech, which can only be abridged on the grounds of public order.

In my opinion, we don't want to make the judiciary part of the general appeals process because it's honestly not even fair to anyone who might be sanctioned. The judiciary is famously the slowest part of our government. That's not a knock on them, since they're chosen for wisdom and probity, but it would be better to have the appeal go to someone who is also level-headed but much more present.

Legally, I think it's also very clear that no one can be permanently banned at all. If we want that to be an option, we're going to have to invent a new crime and make an amendment about it. I'm not in favor. For me, we're just talking about temporary suspensions.

[Baron Alexandreu Davinescu]

I do think we are probably going to have to codify this into law, by the way, but it won't be a crime. It will be specific definitions of public order, and administrative procedures by which people can be temporarily restricted from the public square in order to preserve that public order.

[Miestră Schivă, UrN-GC]

Legally, I think it's also very clear that no one can be permanently banned at all. If we want that to be an option, we're going to have to invent a new crime and make an amendment about it. I'm not in favor. For me, we're just talking about temporary suspensions.

Temporary suspensions from Wittenberg for 1 year maximum are already authorised for serious misdemeanors (El Lexhatx A.4.1.7), and harassment under the law is a serious misdemeanour. So what we're looking for is stuff *under* that threshold.

[Miestră Schivă, UrN-GC]

I do think we are probably going to have to codify this into law, by the way, but it won't be a crime. It will be specific definitions of public order, and administrative procedures by which people can be temporarily restricted from the public square in order to preserve that public order.

I'm going to have to ask this again.

- Is there any problem with the rules set under Wittiquette as it stands?
- Is there any question about the right of Chancery staff under Title J of El Lexhatx to enforce Wittiquette as it is currently written?

[Baron Alexandreu Davinescu]

I'm going to have to ask this again.

- Is there any problem with the rules set under Wittiquette as it stands?
- Is there any question about the right of Chancery staff under Title J of El Lexhatx to enforce Wittiquette as it is currently written?

Yes, it's that clearly the Chancery doesn't feel comfortable doing that.  This doesn't seem like a mystery to me.  The actual existing infrastructure exists already, but making it a process that spells things out formally and with an inherent appeal might help create the permission structure needed.  You seem to think that saying, "We'll back you up" is all that's needed, but clearly it's not.

We need the permission structure.  If we didn't, then you -- the Seneschal for a long time now! -- would be directed your Avocat-Xheneral to prosecute Breneir for harassment.  Or if it wasn't at that level, but still bad enough to have a whole big meeting about, then the Chancery would have suspended him.

Luc probably doesn't want to make this into a giant production, since Breneir has every incentive to be as obnoxious as possible, and it's probably pretty annoying to think about getting started on.  He's not only balancing the protection of the public square against the disruption caused, he's also adding on his own self-interest since it's going to make his Talossa time even more unpleasant.

If it can be someone's job -- it can be someone generally chill but active, like Munditenens -- and they also are backed-up by the Secretary of State, and they also know that there's an appeal that won't take a long time either.  We need this not to be a giant gross nightmarish headache for the person who's supposed to protect the public square, since otherwise they're not going to want to do it unless it gets really bad.

If you're right and the existing laws and Wittiquette are enough, then they'd already be enough.  They're not, so we need to put down some procedures and guidelines so the whole thing isn't going to be mud-wrestling a pig.

[King Txec]

What we need is a Sheriff or a Bailiff. Someone whose job is to enforce Wittiquette with the proverbial drunk tank until a hearing or some other process takes place.

-Txec R

[Miestră Schivă, UrN-GC]

I'm going to have to ask this again.

- Is there any problem with the rules set under Wittiquette as it stands?
- Is there any question about the right of Chancery staff under Title J of El Lexhatx to enforce Wittiquette as it is currently written?

Yes, it's that clearly the Chancery doesn't feel comfortable doing that.  This doesn't seem like a mystery to me.  The actual existing infrastructure exists already, but making it a process that spells things out formally and with an inherent appeal might help create the permission structure needed.  You seem to think that saying, "We'll back you up" is all that's needed, but clearly it's not.

We need the permission structure.  If we didn't, then you -- the Seneschal for a long time now! -- would be directed your Avocat-Xheneral to prosecute Breneir for harassment.

Okay, a few points:

1) If either Bråneu or Lüc had asked the Government to lead a case under El Lexhatx A.7.1.2/7.3.2, you'd better believe we would have treated that request with seriousness. Anything of this nature has to be victim-led otherwise it does look like a political vendetta. But the funny thing is that when we set this Summit up, it was precisely the Lüc case which we had a consensus on - whereby the Government would have considered what happened to Bråneu to resemble the description of El Lexhatx A.7.1.2 more.

2) I would like very much to hear more "horse's mouth" reports from @Sir Lüc as SoS, and from his predecessor in that role, @King Txec, on their real experience of why they have not felt capable of enforcing Wittiquette in the past, and what kind of legislative, political or moral support they would need to do so. My impression is that they just felt that attempting to moderate discussion would make them targets for personal abuse and/or lawsuits, and having the backup of a supermajority of Talossan opinion would be all they needed to be able to do their job. But now it seems that that supermajority might not be coming unless there are additional restrictions on their on-paper right to moderate?

I don't object to changing Title J of Wittenberg if that's necessary, but let's hear expert opinion on what's necessary.

[Baron Alexandreu Davinescu]

1. I have no doubt you would have treated it with seriousness. I wasn't trying to imply otherwise. But in my experience, people are much more likely to want to just move past the whole thing, rather than have to participate in some big production with an unlikely outcome (i.e a prosecution).

2. My impression is also that they just felt that attempting to moderate discussion would make them targets for personal abuse and/or lawsuits. But I also think they probably are hesitant to intervene on someone's right to free speech unless they have a rock-solid reason. I also don't want to make them feel like they need to be on the defensive for not doing anything about these situations. I sympathize a lot with their position. If we ask them to testify, can we make it clear that it's for information and not really criticism?

[Tric'hard Lenxheir]

I don't know if I am allowed to comment here or not, if not please disregard and delete my comment.

I had a private conversation with the Baron about this issue and Miestra Schiva just made a point much more succintly than I did.

I worry that this could easily become a tool for political adversaries. I also worry about the idea of someone making a statement to a third party in private that they were offended or uncomfortable and then that being used to prosecute the offender. I fully agree that any prosecution has to be victim led and more public. It cannot be something like me saying something to the Baron in private that I was offended by something Miestra said to me and then the Baron prosecuting Miestra. I'm sorry I'm not more eloquent in my speechifying LOL