Your Honor:

I submit the following legal question regarding prohibition of citizens (residents/members) of the South Pacific from posting in election campaign threads, which has been imposed by forum administration. This question is based on Article III, Section 1 of the Charter of the Coalition of the South Pacific:

1. All members of The South Pacific will enjoy the freedoms of expression, speech, assembly, and the press, limited only by reasonable forum moderation policies.

Does the prohibition against citizens posting in election campaign threads violate citizens' right to free speech as guaranteed by the Charter?

If the answer to the above legal question is in the affirmative, I respectfully petition the High Court to exercise the power granted to it by Article III, Section 6 of the Charter to strike down forum administration's prohibition against citizens posting in campaign threads. Thank you.

Reply

Your honor, in anticipation that this LQ will be accepted, I would like to submit a brief:

Non-legislators have no right to vote in Cabinet elections, and therefore no inherent right to post in Cabinet election subforums. Are we obligated to allow any transient player access to every single part of the forum? No, of course not. It's a "reasonable forum moderation policy" for election subforum posting permissions to align with who is actually permitted to vote in elections. Furthermore, we have had a history of drama tourists and bad-faith foreigners disrupting and attempting to manipulate election outcomes via campaign threads. So not only it is reasonable moderation policy, it is sensible government policy.

This is a disingenuous question, designed to allow Osiris leadership (Sygian, Syberis) to question TSP's candidate for Minister of Foreign Affairs. Sygian is the head of government of Osiris, a region currently under a heightened scrutiny level by the Council on Regional Security and the Cabinet. Syberis is the Crown Prince. Them feigning interest in how "we" (TSP) are represented "abroad" (to, say, Osiris)1 is an obvious act of bad faith, and points to a probable intent to simply troll, bait, or otherwise disrupt the election of the next Minister of Foreign Affairs. That further underscores the appropriateness of limiting posting permissions in election subforums to those who are actually eligible to vote in that election.

----

1 "I asked these questions because as a citizen of TSP, I do extremely care about how we are being represented abroad." Sygian, Discord (#foreign-affairs), 6:27pm 6/8/2017

(This post was last modified: 06-08-2017, 07:19 PM by sandaoguo.)

Reply

Your Honor, in response to the above brief:

According to Article III, Section 1 of the Charter, all members of the South Pacific -- not just legislators -- have the right to free speech. Under any reasonable interpretation, this must also include residents of the South Pacific, as they are clearly members of the South Pacific. It is no more a "reasonable forum moderation policy" to prohibit residents from posting questions in campaign threads just because they do not have the right to vote than it would be to prohibit them from posting newspapers in the media forum because they do not have the right to participate in the Ministry of Regional Affairs, or to prohibit them from asking questions about Assembly actions because they do not have the right to vote in the Assembly.

It doesn't matter, under the current laws of the South Pacific, whether a resident of the South Pacific is also a member of a region some of us may dislike or distrust. According to the Charter, that resident still has the right to free speech. There is recourse under the law for preventing those who would engage here in bad faith from doing so, including the prohibited groups provisions of the Criminal Code as well as the security declaration powers of the Security Powers Act. If a legislator doesn't believe current provisions of law are sufficient, they may propose amendments or new laws, but what cannot be done is ignoring the law, and stifling free speech in violation of the law, in the name of "security." There is no security risk posed by free speech in this case; having questions posed to a candidate by a resident of the South Pacific, even if antagonistic in nature, will not overthrow nor undermine the Coalition. There is a risk to the security of the Coalition and to the overall health of our democracy if free speech is illegally stifled by forum administration.

Government officials serve everyone in the South Pacific, not just legislators. Everyone in the South Pacific should be able to pose questions to government officials and everyone in the South Pacific should be able to ask questions of those who wish to be government officials. The right to question and petition government officials and candidates for government office are fundamental principles of democracy, and fundamental rights protected by the Charter as well, insofar as free speech is protected by the Charter. We must not undermine the core principles of democracy to satisfy the paranoia of a few.

(This post was last modified: 06-08-2017, 07:59 PM by Cormac.)

Reply

Your honor,

An affirmative ruling on Cormac's question would essentially make any forum delineations and permissions untenable. Freedom of speech does not mean freedom to post wherever one likes.

Citizens of the region — and those outside of the region — can approach candidates on any number of platforms and there is no need to post within a candidate thread for a response. There are plenty of publicly available forums non-voters can approach the candidates.

-tsunamy
[forum admin]

Reply

Your honor,

I would like to add that in the past and now, citizens of TSP have always been able to post on the RMB to ask questions. In fact, I recently asked citizens on the gameside to ask me any questions. I will do so again today with another link to my campaign.

I'm also interested in if this was a recent change as prior to this a person had to be logged in onto the forums to see the campaigns. I'm not judging the change, just wondering when it occurred! This means no need to redo campaigns as dispatches (which I had to do in the past) because they are visible!

Escade

~ Positions Held in TSP ~
Delegate | Vice Delegate 
Minister of Regional Affairs, | Minister of Foreign Affairs | Minister of Military Affairs
~ The Sparkly One ~

My Pinterest

 

Reply

HIGH COURT OF THE SOUTH PACIFIC [1712.HQ] CITIZEN PARTICIPATION IN ELECTION CAMPAIGNS SUBMISSION 08 JUNE 2017 | JUSTICIABILITY 04 MARCH 2021 Whereas this Court has been asked to exercise the judicial power vested in it by Article VIII of the Charter of the South Pacific, it is resolved as follows: DETERMINATION OF JUSTICIABILITY This case is found justiciable and shall be duly considered under all designations assigned by document 1712.HQ.NR. SUBMISSION OF BRIEFS AMICUS CURIAE Interested parties may submit briefs amicus curiae to argue their views on the whole or a part of this case no later than 14 March 2021 10:00 UTC, and shall thereafter be liable to answer any questions that the Court may have in relation to their brief. SUBMISSION OF REQUESTS FOR RECUSAL Interested parties may request the recusal of the Chief Justice or any Associate Justice no later than 10 March 2021 10:00 UTC. Any such request should provide clear reasons to support the requested recusal and explain the possible negative impact of a failure to recuse. RETENTION OF RIGHTS The Court retains the right to consult with, and request further testimony and evidence from, government institutions and other third parties as necessary to adequately exercise its sole right to issue an opinion on this case. It is so ordered. 1712.HQ.DJ | Issued 06 March 2021

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

Reply

Your honor,

If I recall correctly, and others can correct me if I'm wrong, resident non-legislators have permission to post in the public halls of the Assembly. Of course, they do not have the right to vote on bills, nominations, resolutions, treaties, and what have you, but resident non-legislators nonetheless have the permission to post and provide input on publicly-viewable discussions within the Assembly.

In a legal question answered by this Court, the High Court found that a member of the Coalition entails "a nation that resides in the region or a user registered on the forum either resides or participates in the same without reasonable displays of bad faith or intent to upset the legitimate order of the Coalition."

Understanding the High Court's definition of members of the Coalition, Article III of the Charter makes it clear that resident non-legislators have the right to post in the election subforum. As long as we do not distinguish between residents and citizens and the rights afforded to each, all members have the right to post in the election subforum, and no moderator may impede such right.

4× Cabinet minister /// 1× OWL director /// CRS member /// SPSF

My History

(This post was last modified: 03-07-2021, 12:42 AM by Jay Coop.)

Reply

Your honor,

There are two arguments I wish to make regarding this case, which will be more brief than the Court usually expects from me.

First, I believe there is an equity issue in reviving this case from the ash heap of history. This case originated nearly four years ago. The legal system was completely different at the time of the petition. The original petitioner is permanently banned from the Coalition. No member of the Coalition, except those of this respectable Court, has brought forth these claims in the meantime. Under common law, there is the concept of laches that essentially lays out that waiting too long to make a claim means you revoke your right to make it. While this is not a criminal claim, and we're in the unusual situation of the Court itself being the dilatory party, the overall concept is useful. This claim is beyond ripe-- it is fully decomposed and returned to the earth. Even if the Court has technical jurisdictional authority to continue a case after a 4 year gap, it strains credulity to think the Coalition community anticipated allowing it. The Court has a duty here to refrain from unnecessary action, particularly in such an unusual circumstance that begs the Assembly to address. In other words, this case is simply too old for the Court to now action. The Court waited too long.

Second, on the merits of the question at hand, this is as straightforward as I argued 4 years ago. "Citizens", now referred to a non-legislator members, do not have the right to vote in an election for Cabinet. Therefore, no substantive rights are being abrogated by a forum moderation policy that limits their ability to post in election subforums. Tsunamy's point from 4 years ago is also worth repeating: adopted the petitioner's views of the rights of non-legislators would render any delineation of forum permissions untenable. While it's true that the Assembly has granted non-legislators the privilege of posting in the public Assembly forums, this doesn't indicate the grant of a generalized right to post everywhere. Indeed, the Assembly has a private forum that only non-legislators can access, where it discusses important diplomatic and security-related matters, because public access to those discussions could be detrimental to the Coalition. This has been the standard for a very long time, through multiple Charters. If the Charter's freedom of speech provisions require that non-legislator members be able to post in election subforums, then what is the limiting factor that prevents that same right from requiring that non-legislator members be able to post in the private Assembly forums? I'm unable to think of one.

The freedom of speech is not the freedom to post anywhere and everywhere. Not only is it limited by common law understanding of the freedom, but we also limit it with reasonable moderation policies. It's a policy of the forum to limit permissions to those who need them. Non-legislators cannot vote in Cabinet elections, as they aren't members of the Assembly. The Cabinet is chosen by and accountable to the Assembly. Therefore, it's a natural and reasonable permissions setup to limit those subforums to members of the Assembly, just as with the private Assembly forums.

(This post was last modified: 03-09-2021, 11:10 PM by sandaoguo.)

Reply

HIGH COURT OF THE SOUTH PACIFIC [1712.HQ] CITIZEN PARTICIPATION IN ELECTION CAMPAIGNS SUBMISSION 9 JUNE 2017 | JUSTICIABILITY 6 MARCH 2021 | OPINION 13 JUNE 2021 QUESTION Does the prohibition against citizens posting in election campaign threads violate citizens' right to free speech as guaranteed by the Charter? SUMMARY OF THE OPINION It is the opinion of the Court that access restrictions in campaign threads do not violate freedom of speech. Such access restrictions are lawful so long as Legislators may view the campaigns, Legislators have access to an area to debate these campaigns with each other, and all citizens have access to one or more areas where they may express their opinions on campaigns that they have seen. The Court also finds that the June 2017 Cabinet election sufficiently met these three criteria. JUSTICE ROAVIN DELIVERED THE OPINION, SIGNED ALSO BY CHIEF JUSTICE KRINGLE. A narrow reading of Petitioner's Question would mean that the Court should only consider whether a "prohibition against citizens posting in election campaign threads" violates the freedom of speech as granted by the Charter, but not the wider issue of whether or not such a prohibition is lawful or not. Petitioner also requested that the Court strikes down a prohibition if it does find that such a violation of the freedom of speech occurred. In lieu of not being able to ask for clarification, it is reasonable to assume that Petitioner seeks a remedy for that prohibition in general rather than just specifically for a violation of freedom of speech. This is supported by sandaoguo's contemporary amicus brief which provides one possible intent for the legal question ("to allow Osiris leadership [...] to question TSP's candidate for Minister of Foreign Affairs"), a claim that Petitioner's subsequent response did not contradict. To adequately address the original intent, the Court has expanded the scope of the answer to address generally whether such access restrictions on campaign threads are lawful, both in general and specifically in the context of the June 2017 Cabinet elections. There has never been a time in the South Pacific where there were no access restrictions on off-site infrastructure. Even the very first forum, created by Killer Monkeys, had areas designated as "special access"[1]. Today, the concept of access restrictions remains generally accepted and supported by our laws. For example, Article 1.3 of the Criminal Code speaks of "private information that originates in official South Pacific discussion areas" that is not to be made "publicly available" [2], which implies that there are areas on our off-site platforms (sub-forums, Discord channels, etc.) that are not visible to everyone. Similarly, Article 4.4 of the Proscription Act states "the individual must be granted adequate forum permissions to participate in the High Court proceedings for that case"[3]; to participate, both viewing and posting permissions are necessary, therefore the corollary is that there may be restrictions to post in certain areas of the forum. In summary, and without at this point considering the rights granted in Article III of the Charter, it is a reasonable interpretation that both viewing and posting restrictions, in general, are lawful and extant. Campaign threads are mandated by the Elections Act, which states that they must be posted "in an area designated by the Election Commission"[4]. From that alone, we can interpret that the Election Commission has the normative authority to decide on access restrictions because even if they are not able to set access restrictions directly (if the Election Commissioner is not a member of the Forum Administration team, for example), their choice of venue can affect what the access restrictions are. The law does not state explicitly what access restrictions are allowed, but in three separate instances, the Elections Act specifies that "the Assembly will debate the merits of their platform"[5][6][7], from which we can reasonably interpret that Legislators (that comprise the Assembly) must be able to view these campaign threads. Notably, this does not say that Legislators must be able to post in these campaign threads, only that they debate the merits of the candidates (and campaign threads are used to judge those merits). The Election Commissioner could decide that campaign threads remain pristine and that the Assembly debate the candidates in other places. So far, the law does not prescribe any access restrictions (or lack thereof) for non-Legislator citizens to view campaigns, or to view or post in the debates. The remaining question here is whether these access restrictions violate freedom of speech, as Petitioner originally posited. Article III Section 1 of The Charter states that South Pacificans "will enjoy the freedoms of [...] speech [...], limited only by reasonable moderation policies", but does not further clarify the meaning of "freedom of speech"; rather, it is a concept lifted from the wider universe beyond NationStates. Merriam-Webster defines it as "the legal right to express one's opinions freely"[8], while Wikipedia states that it is "a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction"[9]. Notable here is that neither definition contradicts a restriction on "time, place, and manner" (itself a related concept from the wider universe) to an expression of an opinion or idea. For example, it is allowed for an individual to shout "FIRE" for themselves, or when there is imminent danger due to a fire, or when singing a song with that lyric, or when reacting to a particularly good mixtape, or in a myriad of other scenarios. On the other hand, shouting "FIRE" in a crowded area when there is no fire is intuitively dangerous, as it may lead to a panic in which people get injured, and is therefore not permissible in most jurisdictions even if they have freedom of speech. In that scenario, the expression of the idea "FIRE" itself was not restricted, but rather that combination of time (when the area was crowded), place (a crowded area), and manner (shouting it in a panicked manner so everybody could hear) is. In other words, the "what" and "whether" cannot be restricted, but the "how" can. Another example, this time set within the NationStates universe, could be as follows: Suppose that the current Delegate of the South Pacific began perpetrating acts that are, or lead up to, a coup d'etat. Concerned members may opine on that action in a number of venues, such as on the Regional Message Board, on the forum, or in a Discord channel, and this ability is the very purpose of freedom of speech: Individual South Pacificans may speak out against these tyrannical actions, rather than be subdued. A malicious Delegate may want to restrict that member's characterization as it tarnishes their image, but they cannot. The only restrictions on what these concerned members may say are the moderation policies mentioned in the Charter, but these restrictions cannot affect the underlying message, because as Chief Justice Kringalia stated in 2001.HQ, these moderation policies are for the purpose of "maintain[ing] orderly and civil discourse"[11], not to put restrictions on any particular political viewpoints. However, let's imagine the reverse scenario now: If the Delegate is benign and those members are either under a grave misapprehension or, at worst, outright malicious, they could still convey that message but not in any way they please. For example, a regional officer could send a telegram arguing against the Delegate to the region. In that case, the expression of that idea may very well be dangerous for the region, as such a telegram from a government official would likely lead to a wave of unendorsements on the Delegate and thereby destabilize the region in a case when the Delegate is not at fault. Such a telegram is a misuse of the regional officer's office and not permitted. Once again, the "what" and "whether" are not restricted, but the "how" is. At this point, it's also worth considering Tsunamy's brief: If any access restrictions violated free speech, that would preclude the possibility of confidential discussions which are sometimes necessary, such as for diplomatic proceedings or internal security discussions. That would be absurd and therefore an untenable reading of the Charter. With this enhanced understanding of that freedom, we can look at the issue of campaign threads again. If they are viewable by non-Legislator citizens, then these non-Legislator citizens have a Charter-given right to a reasonable time, place, and manner to express their opinions about these campaigns. No restrictions on time or manner exist, and Petitioner did not mention such restrictions either. As for a reasonable place, the Court finds that there are many venues that a citizen may use to express their opinion, such as the Regional Message Board, the South Pacific's Discord server, other sub-forums of the South Pacific forum, or even via a regional telegram sent through a NationStates-legal script. It is not necessary to express this opinion directly within the campaign thread. Putting this together, the Court finds that access restrictions on campaigns must meet the following tests: First, campaign threads must be viewable by Legislators. Second, Legislators must be able to debate campaigns with each other in some reasonable venue within the South Pacific's jurisdiction. Third, citizens must be able to opine on campaigns they have seen in some reasonable venue within the South Pacific's jurisdiction. In the June 2017 Cabinet elections, campaign threads were posted such that any individual can see them but only Legislators may comment on then. The first test passes, because Legislators can see public threads. The second test passes, because Legislators were able to comment and debate with each other within those campaigns directly. The third test also passes because non-Legislator citizens were still able to discuss these campaigns in a myriad of other avenues, which for example Sygian (who was mentioned in sandaoguo's contemporary brief) took advantage of[10]. Finally, addressing sandaoguo's recent brief, the Court disagrees that the question is no longer ripe. While the structure of the Court has changed in the meanwhile, the legal basis on which the question is answered remains similar enough to warrant a meaningful opinion. In 2017, the region operated under the same iteration of the Charter, and in particular, Article III which prescribes the freedom in question has remained unchanged in that time. In the Elections Act, the line "the Assembly will debate the merits of their platforms" existed at the time as well, and while the mandate for campaign threads was added in 2018, a reasonable interpretation of that same line heavily implies intent for there to be such campaign threads. The clause about Espionage in the criminal code, while also amended at that time, contained the same language about information that is "publicly available", and while the Proscription Act did not exist in 2017, similar language about forum access for High Court proceedings existed in the Criminal Code at the time. The High Court is not permitted to dismiss cases just because it has "waited too long"; the only criteria are whether it is justiciable, and in this case, we did not see why it would not be.   It is so ordered. FOOTNOTES AND REFERENCES [1] Original forum; Retrieved from: https://tspforums.xyz/forum-120.html [2] Criminal Code, Article 1, Section 3 (2020) The MATT-DUCK Law Archive [3] Proscription Act, Article 4, Section 4 [4] Elections Act, Article 2, Section 4 [5] Elections Act, Article 3, Section 2, Sub-Section a [6] Elections Act, Article 4, Section 1, Sub-Section b [7] Elections Act, Article 5, Section 1, Sub-Section b [8] Merriam-Webster definition of "freedom of speech"; Retrieved from: https://www.merriam-webster.com/dictiona...f%20speech [9] Wikipedia definition of "freedom of speech"; Retrieved from https://en.wikipedia.org/wiki/Freedom_of_speech [10] Post by Sygian toward MoFA-candidate Escade in the former #foreign-affairs channel on June 8, 2017: https://discord.com/channels/12142994326...0286070786 [11] 2001.HQ; Retrieved from: https://tspforums.xyz/thread-8252-post-2...#pid202063     1712.HQ.O | Issued 13 June 2021

Reply