CHIEF JUSTICE KRINGLE DELIVERED THE OPINION, SIGNED ALSO BY
JUSTICE NAT.
On the question of the application of the Regional Communications Act to private citizens and election candidates using mass telegrams, it is the opinion of the Court that Article 2, Section 2, Sub-Section E of the Regional Communications Act (hereafter the Act) does not apply to any member of the Coalition who sends mass telegrams without the use of Regional Officer powers. This decision is reached based on an analysis of the Act itself and an analysis of its compatibility with Article III of the Charter of the South Pacific, related to the rights of members to freedom of speech and expression, among others.
Article 2, Section 2, Sub-Section E of the Act says that communications may not be used to "deliberately influence a regional election in favour of or against specific candidates"
[1]. A few lines above, Article 1 lists the forms of communications regulated by the Act and clarifies that "any individual capable of engaging in mass communication with the region"
[2] is subject to its regulations. A superficial reading of the Act could lead a casual reader to conclude that any mass telegram would be prevented from influencing elections; after all, Article 1, Section 1 does read as follows:
(1) Modes of mass communication covered include
a. Mass Telegrams to the region using Regional Officer powers
b. Dispatches pinned to the regional World Factbook Entry
c. Changes to the regional World Factbook Entry
d. Any other form of communication, apart from the Regional Message Board, that is directly visible on the NationStates website by the in-game region at large.[3]
It is true that mass telegrams using Regional Officer powers are the only kind of telegram explicitly listed in the Act, but Sub-Section D also says that other forms of communication may be considered. Presumably this would include mass telegrams sent through other means, such as stamps or a script. This reading, however, would ignore two key facts.
The first key fact is that the forms of communication that are explicitly listed in the Act all correspond to uses of Regional Officer powers, and therefore are only available to Regional Officers. This could lead to the conclusion that the Act's restrictions serve to prevent the misuse of government powers through the use of government infrastructure. A regular member cannot pin dispatches or change the World Factbook Entry, but they can send mass telegrams without being a Regional Officer. It might take technical skills or a willingness to spend money, perhaps, but the option is still there and has no restrictions other than those imposed by NationStates Administration and Moderation. To regulate the use of public infrastructure for mass communication would, therefore, be out of the Act's character.
The argument could still be made, however, that public infrastructure (i.e. mass telegrams through scripts or stamps) would also be included by virtue of Article 1, Section 1, Sub-Section D. This leads to the second key fact, which is that communications made through public infrastructure, and therefore not tied to the use of government powers, are a form of speech and thus restrictions to them should be subjected to a heightened level of scrutiny; after all, there is no legitimate government interest in promoting certain candidates over others, but there is a legitimate government interest in allowing members to freely express their views about any and all candidates.
Article III of the Charter says that all members "will enjoy the freedoms of expression, speech, assembly, and the press, limited only by reasonable moderation policies"
[4]. A reasonable reading of the law would lead to the conclusion that sending mass telegrams through scripts or stamps is an exercise in free speech; after all, whichever member does that is sharing their own views with resources available to all, rather than misusing a resource meant to serve legitimate government purposes. In fact there is significant similarity between sending a mass telegram through scripts or stamps and posting a message on the Regional Message Board in that both are methods by which private citizens may indiscriminately disseminate information to the region at large. In both cases the concept is arguably the same: the one who sends the message has done so because they have a right to express how they feel about a candidate and therefore participate in the democratic process of the region.
There is a second clause to Article III, adding that the rights enumerated within it may be limited only by "reasonable moderation policies"
[5]. It was suggested to the Court, through a brief amicus curiae, that Article 2, Section 2, Sub-Section E of the Regional Communications Act, which prohibits the use of mass communications to influence elections, could constitute a reasonable moderation policy
[6], but this ignores the meaning of the term within the Charter. Moderation is mentioned, most prominently, in Article V, Section 3 and Article XIII, Section 3, reproduced as follows:
(3) The Local Council may not be denied the authority to run regional polls, create and pin Dispatches, and to suppress messages on the Regional Message Board according to a standard moderation policy.[7]
(3) The Off-Site Administration Team must create standard administration and moderation policies. These policies will be submitted to the Assembly for a one-week review and comment period before going into effect.[8]
The Charter clearly envisages moderation as being something both the Local Council and the Off-Site Administration Team do. The common function of these two groups is to maintain orderly and civil discourse within their jurisdiction. This can be validated through a review of the moderation policies produced by the Local Council and Off-Site Administration -the RMB Rules and Etiquette
[9] and the Community Standards
[10], respectively- which will show that moderation, and therefore a reasonable moderation policy, refers to the rules that allow members to coexist. These rules involve restrictions on spamming, flaming, trolling and other behaviours that would make it difficult for members to engage with each other in good faith.
The expression of opinions on any candidate is not a behaviour that would break the good faith of members; rather, it is a natural and necessary part of the democratic process whether such expression happens through campaign threads, instant messaging or mass telegrams. The fundamental idea remains that, all things being equal, a member is merely expressing their political preferences, as is their right. It would be remiss for the Court to allow the restriction of rights, however uncomfortable or negatively seen their exercise might be, when the Charter, the supreme law of the region, guarantees their free exercise.
Insofar as the exercise of the rights to free speech, expression and press may not be abridged for reasons other than the implementation of reasonable moderation policies, and further given that a restriction on the expression of political preferences in an otherwise civil manner does not constitute a moderation policy, Article 2, Section 2, Sub-Section E of the Regional Communications Act only applies to the use of Regional Officer powers, but not to any member, regardless of position or title, who makes use of public infrastructure to exercise their right to free speech.
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