In re Restraining Order Act [2019] SDSC 1

Persuasive precedent
Judgment no longer binding following the 2021 Rebirth Amendment

Danyo Law Library Neutral Citation:
In re Restraining Order Act [2019] SDSC 1

Original judgment:
https://docs.google.com/document/d/1q1U9nOQBd89F17GIruyiXHZUxUQ0yHlWIEjVCLHxFl0/edit#heading=h.77k4gq62zrxu

MAJORITY OPINION by Chief Justice Euphyrric
(with Justices Danyo and Match Stix agreeing)

[1] The arguments presented by the petitioner were: Breaches of Article 21 (Freedom of Expression) and Article 22 (Right to a fair trial) of the Constitution of SimDemocracy.

[2] On the basis of an A21 breach, the petitioner argued that the Constitution does not allow for restrictions on speech, and that the ROA is in violation of that by ordering the party restrained to cease all unnecessary communication, or negative speech against the requester.

[3] This court respectfully disagrees with the petitioners interpretation of Article 21, instead interpreting the article to protect the freedom of a citizen's expression.

[4] Freedom of Expression is defined by this court as a citizen's right to freely express themselves in public, through the medium of speech or written messages.

[5] This court believes that as the ROA allowed for critical political speech, and speech needed for the executive of a task that the act was not in breach of a citizen's expression.

[6] On the basis of an A22 breach, the petitioner argued that the ROA denied the restrained parties right to a fair trial in that they can be sentenced to a 1 day mute if they are found in violation of the order.

[7] This court unanimously found that the ROA was in violation of A22. The denial of a party's right to defend their actions, or to further explain the circumstances which led to their violation is unconstitutional.

[8] As the ROA is in violation of the Constitution, and as the court is only afforded the ability to invalidate the act in totality rather than an explicit article or section of the act, this court hereby declares the Restraining Order Act as unconstitutional, invalidates it in its totality, and renders all of the Restraining Orders given by the Judiciary as null and void.


MAJORITY OPINION by Justice Danyo
(with Justices Euphyrric and Match Stix agreeing)
Introduction
[9] The petitioner is seeking judicial review of the Restraining Order Act (“ROA”) on the grounds of unconstitutionality in respect to Article 21 (freedom of expression) and Article 22 (right to a fair trial) of the Constitution.

[10] The ROA was drafted by Senator /u/sunbear99999 as a response to increasing concerns of harassment within SimDemocracy. Its provisions allow for users (the applicant) who feel “threatened or harassed” to apply for restraining orders against other users by providing evidence to judges who can sign them off. Users under a restraining order are prohibited from talking about the applicant in “a hateful or disrespectful way”. Section 4 of the ROA lists exemptions, including “political speech” under s4.3 and official communications for government business under s4.4.

The ambit of Article 21
[11] The ROA imposes certain restrictions on speech (i.e. what people can and can’t say) and so it falls under the ambit of Article 21.

[12] Article 21 allows for citizens to enjoy freedom of expression and religious beliefs. Section 1 of the Article elaborates on the types of rights and freedoms that are encompassed under the umbrella term of “freedom of expression”, including freedom of speech which is relevant to this case. Section 3 of the Article states that “the state shall be prohibited from passing a law that abridges or restricts the exercise of these rights”.

[13] The petitioner argues that as the ROA prevents people from speaking in a “hateful or disrespectful way”, it violates Article 21 and thus is unconstitutional. The petitioner also states that “all citizens have the right to any speech, the Constitution does not allow any restrictions on it regardless of the citizens intent or any consequences of the speech”. This court respectfully disagrees with this interpretation.

[14] Section 3 of Article 21 prohibits the state “from passing a law that abridges or restricts the exercise of these rights”. The section prohibits restricting the exercise of the right to freedom of speech. The section, however, does not prohibit restriction of speech outright. This distinction is extremely important because it means that restriction of speech itself is not unconstitutional - it only becomes unconstitutional when it interferes with people’s freedom of speech. Such a distinction is important because not all speech (things that people say) are covered under freedom of speech. A real life example would be shouting “fire” in a crowded theatre. As such, freedom of speech is not an absolute right, but rather a “qualified right”. In other words, freedom of speech is a right that must be balanced with the rights of others, the rights of society as a whole, and the public interest.

[15] Therefore, this court needs to establish a barometer to which we can measure whether a form of expression is covered under freedom of expression. Freedom of expression, fundamentally, covers a citizen’s right to freely express their political and religious beliefs. However, there are certain forms of expression that do not legitimately convey any form of opinion or belief. For example, doxxing is merely the release of someone’s personal information. It serves no other purpose, and thus is not covered under freedom of expression. Likewise, the existence of defamation and harassment laws fall under this premise - that these forms of speech (speech, once again, being defined by me as just things that people say) don’t legitimately convey any meaningful political or religious belief or opinion and therefore are outside the remit of freedom of speech.

[16] As an additional note, both Reddit and Discord Terms of Service (“ToS”) impose restrictions on freedom of expression as a higher law. The Discord ToS prohibits the use of their service to “defame, libel, ridicule, mock, stalk, threaten, harass, intimidate or abuse anyone”, whereas the Reddit ToS prohibits content which “threatens, harrasses, or bullies or encourages others to do so”. In that regard, even if attempts were made to make freedom of expression an absolute right (which is and will always be impossible as the existence of the Reddit and Discord ToS will always make it a qualified right at most), laws which prohibit or attempt to mitigate harassment (which the ROA falls under) would still be held lawful because the ToS is a higher law and supersedes the Constitution.

[17] Section 4.3 of the ROA makes a clear exemption for “political speech” which does indeed fall under Article 21. What falls outside of its remit is “ordering the party restrained to cease all unnecessary communication, or negative speech against the requester” per Chief Justice Euphyrric, [2]. This court holds that such restrictions are indeed constitutional and dismisses the claim under Article 21.

The ambit of Article 22
[18] The ROA allows for judges to dispense punishments listed on the restraining order if the person restrained violates the order and so it falls under the ambit of Article 22.

[19] Section 3.2 of the ROA allows for judges to “invoke the punishment listed in the restraining order document”. However, s4.1 of the ROA also puts restrictions on the punishments, stipulating that the “punishment listed in the restraining order may only be up to a 1 day mute, anything more must go to a trial”.

[20] The petitioner argues that the ROA give judges the power to dispense sanctions without giving the person restrained a fair trial, which violates Article 22, making the law unconstitutional.

[21] Frustratingly, the Constitution too has referencial errors, which is not ideal for the supreme law of the land. Article 22, s3 states that “no one may be punished without their guilt being proven in court in a fair trial”. s3.1 states that punishments are listed in Appendix s1.6, which states, rather unhelpfully, “A Constituent Referendum shall be up for 24 hours [...]”. This is an obvious case of a referencial error and can be dismissed as such. The section, however, also stipulates punishment “as any other action which negatively impacts the citizen”. This court holds that muting counts as a punishment for the purposes of Article 22. Consequently, this means that the ROA allows judges to dispense punishment without affording the citizen’s concerned a fair trial, in direct contravention of Article 22.

Verdict
[22] I agree with Chief Justice Euphyrric’s judgment in declaring the ROA unconstitutional on the grounds of Article 22 only. The ROA is unconstitutional, null, and of no effect.