I don’t care much about the rules. Not in the sense that I’m an anomialist or inclined to short cuts, I’m actually a stickler for following the rules. But I don’t care all that much about what the rules are.
I know I should care about this bill or that one, and I usually do have an opinion on what would be better. But in my limited experience as an attorney I’ve quickly learned that individual outcomes for real people are all that matters. It is also my sincere beleif the the rules, the laws or what have you, are far less important to a just outcome than is due process.
Because I’m a big fan of the BT and I think everything can always be better, here is my unsolicited proposal:
con’t. below…
As a result of some recent unpleasantness, someone was banned. The resultant discussion raised some points that resonated with me and lead me to make this suggestion.
First there was the “private property” vs. “community” debate. There is no question that the BMT is the sole and exclusive property of BMT, LLC., to be disposed of and utilized at will. But that isn’t the end of the story, the BMT is part of the Constitutionally protected free press- BooMan owes “we the people” big time for some serious legal privileges. This is also a forum for speech, a private one, but a forum none the less- if the government were to pull the plug on BooMan’s servers the members of the community would have a sufficient legal interest in the BMT to challenge the government’s action in court. So it isn’t just hot air to say that the members of the BMT community are more than just guests. Members have owed to them an obligation of respect for their membership that is more than moral, although less than legal. So I think it is wrong to say without qualification that it is BooMan’s blog and he can ban whoever, however, and whenever he wants.
Secondly and relatedly, is the issue of free speech. BooMan isn’t the government and the first amendment doesn’t restrict him from taking action against someone for the content of their speech. But once again, by taking advantage of the First Amendment, I beleive that the BMT owes something to the community from whence the rights of free speech emanate. Moreover, by allowing use of the site as a true public forum, the BMT is given some additional degree of protection from liability for what members of the community post here. So I think that there are very good reasons to refrain from policing members based on the substance of their speech. At the same time I beleive that rules are necessary to provide for any kind of civil discourse.
BooMan has one rule, don’t be a prick. We also have one comment on the rule, “in other words don’t do anything that would get you punched at a party in real life.” I think he’s entitled to make any rules he wants to- that’s a satisfactory legislative process in my book especially given that our legislature has and will meet only once. I also think it is fair that BooMan gets to act as the executive and enforce the rule. It is, after all, his site. But I do think membership should have, as one of its privileges, minimal due process before it is revoked. Here is what I suggest:
- Because violations of the rule have the potential to have serious and immediate consequences, no pre-banning hearing shall be required.
- Members shall be entitled to a review of their banning by a person other than the person who banned them.
a. Such review shall be initiated at the request of the person banned.
b. When review is requested, the person who did the banning will supply to the reviewer findings of fact and conclusions of law relating to the banning.
c. The person banned shall have the right to dispute through the presentation of evidence the findings of fact and may submit argument that their ban was not based on a violation of the rule.
d. The scope of the review shall be de novo as to findings of fact. As to conclusions about the applicability of the rule, the reviewer shall defer to the decision to ban unless the reviewer holds the banning to be arbitrary and capricious or an abuse of discretion.
e. In determining whether a ban was an abuse of discretion or arbitrary and capricious the reviewer shall be guided by the rule, precedent (if any), and the following guidelines:
i. Free speech is free speech, no one should be baned solely for speech.
ii. Sometimes words are acts and deserving of less protection that speech. For example, fighting words, libels, frauds and words of contract. Being a prick involves doing one of these things.
iii. For the purposes of interpreting the first comment to the rule (“would get you punched at a party”) other progressive bloggers and blogs should be considered to be within earshot.
f. The reviewer shall issue a decison supported by a written opinion in the form of a diary.
So how’s that for due process, more than nothing but at least it is some guarantee of rights and fairness.
(Disclosure, I’m the att’y for BMT, LLC.)
