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.)
Great satire!
And I guess I’ll have to try to rustle up a secret military base.
P.S. Where can I get one of those really cool inch high “SHIRL” banners?
I think katiebird has them in the FBC. . .an old joke from the startup of the Cafe. . .I wanted everyone to yell “Shirl!” when I came in since I spent inordinate amounts of time there. That was always katiebirds greeting to me.
I’m no combatant, if that is what you are thinking. I am just enjoying the humor.
There is something so. . .so. . .oh, you know, about guys who speak latin to a woman. . . .
but is it wrong that the Totally Over the Top “Shirl” makes me giggle and feel this good? Probably a law against it. Let humor rule. The chortle is dead, long live the gafaw.
Semper Ubi Sub Ubi
Manny, this is your Blog Mother your talking to!
which is why I gave you some great advice (especially whilst wearing a pink tutu)
Oooops, the pink tutu thing again. Ah me. What’s a woman to do. And since no one seems to be getting my intntion of words tonight, that was rhetorical.
Is that true, Cicero? I was about to write a thoughtful and serious reply, but if this is just one more way to dig at people who are actually talking about this, color me thoroughly distgusted.
It is a serious proposal, written in language that is (more) than somewhat satirical of legal language. The sentiments are, however, genuine. And it, IMHO, a workable method of proviting some modicum of fairness. It is less complicated than it seems due to my light tone; findings of fact are pretty much limited to “did so and so post such and such”- not a problem to verify on the net.
As for the rule, honestly I don’t think anyone has been banned for anything that wouldn’t be legally cognizable as a verbal act. But at the same time I can see a legitimate desire for an open non arbitrary process. I also think that despite the lack of such a guarantee, all bannings that I recall were done in a fasion that somewhat paralells the process I described.
Thanks for the response, Cicero. I didn’t take it as satire when I read it and agree that transparency in the process and a feeling that whatever the rules ARE, they are not being applied differently to different people would go a long way. I also think that before what you rpopose would work, that the rules would have to be made MUCH more specific than “don’t be a prick”.
I appreciate your efforts and thank you again for answering my question.
I think the situation is analogous to prohibitions against fraud- you can’t be too specific or else you give people who would abuse the system a a roadmap. The rule enforcer needs to be able to use sound discretion for any system to work and ultimately one simply has to rely on the reasonability and good faith of decision makers, transparency helps, but everything does eventually devolve into trust in a person.
I’m not talking about COMPLICATED rules, I’m talking about rules that are understood by everyone — imagine law enforcement going around trying to prosecute non-compliance with “don’t be a prick” — wouldn’t that be more complicated than saying:
and part of not being a prick is not to make accusations that you can’t back up with facts/evidence about real people in the blogoshpere? And give an example or two?
I agree with you about trust being the bottom line as well, our whole living on this planet beyond the lifespan of a mayfly is based on layers of trust, and unspoken or codified agreements to some degree or another — I get in my car to drive my kids to school, I trust that everyone will do their best to stay on their side of the road, I trust that the school officials will be there and have the school up and running when I get there….and on and on.
But the big part here is RECOURSE (and I do think you’re trying to address that in your proposal) when that trust is broken — what I hear a lot of people saying is that they are unconfortable with the lack of recourse one has with the system as it is — except of course the old “go start your own blog” thing. I think that particular recourse really discounts and devalues a lot of what members contribute.
Anyway, my 3 cents.
you’ll want a final appeal to Ed Rendell.
go to the House of Lords.
This is a publication to be edited and if that editing must include banning, so be it.
I rated you up not necessarily because I agree, but because that’s an insightful distinction.
I think a lot of animosity comes from people not sharing the same sense of where those two balance out. Myself, I’ve often pictured BMT as a pub – the sort where Madison and Jefferson might come to bitch about the King of England. But, then again, FBC is only one section of the site.
I would figure that the people putting more time and energy into one particular site would tend to see it as more of a publication than a place, though.
wasn’t there something in there about not being a prick?
Oops, too late.
Not a bad idea. I’ve a couple of questions, who would the reviewer be and/or who selects the reviewer?
there could be a call for volunteers and then submission of lists of acceptable reviewers until there is a coincidental name.
Or I could just do it 😉 Just call me Scalito
I disagree with all of this. It’s BooMan’s blog. It’s officious to suggest a complicated set of rules. It sounds to me as if he bends over backwards to give multiple warnings before taking the rare step of banning. That sounds like a lot more due process than people are really due.
By the way, as a lawyer myself with 20 years of experience helping people in desperate circumstances, I disagree with your introductory claim that due process is more important than “rules.”
You say: “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.” I think that’s terribly wrong for two reasons. First, “just outcomes” are determined by substantive rules to a fantastically greater extent than by procedural rules. Your comment really does reflect limited experience. Second, if one gives complete weight to a supposed just outcome in every case, in complete disregard of the substantive rules, then one runs into the old maxim “hard cases make bad law.” One just outcome now may well lead to 10,000 unjust outcomes down the road.
Incidentally, I stopped reading your corollaries at about c. They’re just silly, in my humble opinion.
May I also suggest: spellcheck is your friend!
And I’ll readily concede that as the “importance” of a case increases, so does the role of substantive law. But at the lower levels, where most people have brushes with the civil and criminal systems, I’m pretty confident in my position. Cases are disposed of in a proceedural manner in a very outcome oriented way (this may well be a feature unique to my jurisdiction) to the general benefit of what I would call giving people a fair shake.
Also, the corolarries are silly, see above. Also please note that every banning has substantially complied with my suggestion. As you say, BooMan is more than fair.
I propose a far simpler process:
The ban sticks no matter what, unless:
The offender appears in person to either:
and thus, through penance, is redeemed. The deal is revoked if at any moment the offender appears to be enjoying themselves (yes, even at the party).
That’s the way they do it in the Ministry of Information Retrieval over in Good Old Eastern Europe, where they really know how to do a secret prison.
Can those outside of travel range do a nice neo-Stalinist “confession” diary instead?
Only if they don’t survive a Dunking and aren’t proven a witch.
Gulag!