Snowstalker v. The Midwest

[windjammer]

My first remark will be that Snowstalker should remember that the Supreme Court of Atlasia isn’t here to determinate if laws currently enacted are enforceable, are correctly written, etc.  The Associate Justices are gathered here to determinate if the Midwest LGBT violates or not the Atlasian Constitution. That’s why I believe comments like “this law is useless”, “this law is horribly written” have nothing to do in a brief, and  I hope the  Associate Justices won’t take into account these kind of remarks. The Supreme Court isn’t made to determinate if the law is poorly written or not, if the law is enforceable or not, but to determinate if the law is C-O-N-S-T-I-T-U-T-I-O-N-N-A-L or not.
Now, I will defend this law.


1)   The first Snowstalker’s attack, is, if I have clearly understood, the fact that the gay community would be transformed into a “superior class”. How? The law is clear: 1) Any business, school or anyone else seen denying anyone who's LGBT the same rights as others will be subject to fines and lawsuits.
I believe the words are clear, “the same rights as others”. This section isn’t made to transform the “gay community” into a superior, it is made to avoid any difference of treatment between the gay community and the rest of the population. This section doesn’t add additional rights for the gay community, it avoids the gay community from having less rights than the rest of the Midwest population. That’s why I believe this section doesn’t violate

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2)   The second Snowstalker’s attack, if I have clearly understood, the fact that the prohibition  of “verbal abuses” would be a violation of the right of free speech.
In order to determinate if the prohibition of “verbal abuses” violated the right of free speech, we need to define what “liberty” is exactly. Liberty isn’t anarchy. I will quote the Declaration of the Rights of Man and of the Citizen of August 1789:

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That’s why I believe “free speech” consists in the freedom to speak about everything which injures no one else. As I believe “verbal abuses” injure psychologically the victim of these “verbal abuses”, I believe that the prohibition of verbal abuses doesn’t violate the right of free speech.
I understand that many interpretations can be made about "free speech". But I believe my interpretation isn't inacurrate and that it would have been written completely differently in case of the Snowstalker's interpretation: "without any limit" for example.

3)   Since Snowstalker himself doesn’t believe the other parts are unconstitutional,  I don’t understand why he wants to completely strike the law. The fact that the law might be poorly written doesn’t mean this law is unconstitutional.

------------------------------

Now the Torie’s questions:
1)   A punishment so vague to be enforceable, but according to me a punishment that doesn’t violate the constitution.
2)   I don’t believe it raises constitutional issues, simply because it doesn’t violate the constitution because the gay community doesn’t get additional rights.
3)   It applies only in  the context of a discriminatory firing based on sexual orientation.
4)   The Midwest has its own Constitution, and according to me, this law doesn’t violate the Midwest Constitution.
5)   “Verbal abuses” don’t violate the right of free speech because I believe free speech consists in the freedom to speak about everything which injures no one else.
6)   In the case that the “Verbal abuses” is ruled unconstitutional, I don’t believe this law should be ruled completely unconstitutional, simply because the other parts of this section can survive without “Verbal abuses” and aren’t unconstitutional as well.



Best regards,
I'm available if you have other questions.
Governor Windjammer

[Oakvale]

The Court thanks the defendant. The time period for the submission of briefs is now closed.

I have some questions for both sides, as I imagine my brother Justices do, so I imagine we may be calling some relevant people to answer such shortly.

On which note, Governor Windjammer - who would you describe as the primary author (or authors) of the bill and would they be available to shed some light on the dispute in question?

[Torie]

I apologize in not getting back to this sooner. I have been deflected studying for the New York bar exam - among other things. I am going to print out this thread, and study it, and then probably will have further questions. Thank you for your patience.

[Oakvale]

I hope the Governor will deign to reply at some point...

In the meantime, I have some further questions.

For the respondent/s -


1.  You concede that the offenses and punishments, such as they are, described in the bill as it stands are so vaguely defined as to be unenforceable, but argue that this does not equate to unconstitutionality. Does the subjectivity and ambiguity inherent in such vagueness not violate the constitutional right to due process? How can someone reasonably be tried under a law where there's no clear definition of what conduct is now illegal?

2. I think few would disagree that free speech does not imply anarchy, but you argue for a definition of free speech based on "not injuring anyone else". Yet Atlasia has a strong tradition of allowing distasteful speech and expression and not penalising people for holding certain unsavoury views. Where do you draw the proverbial line between an exercise of free speech and 'injuring' someone? I don't see any attempt at definition in the language of the legislation.

[windjammer]

I hope the Governor will deign to reply at some point...

In the meantime, I have some further questions.

For the respondent/s -


1.  You concede that the offenses and punishments, such as they are, described in the bill as it stands are so vaguely defined as to be unenforceable, but argue that this does not equate to unconstitutionality. Does the subjectivity and ambiguity inherent in such vagueness not violate the constitutional right to due process? How can someone reasonably be tried under a law where there's no clear definition of what conduct is now illegal?

2. I think few would disagree that free speech does not imply anarchy, but you argue for a definition of free speech based on "not injuring anyone else". Yet Atlasia has a strong tradition of allowing distasteful speech and expression and not penalising people for holding certain unsavoury views. Where do you draw the proverbial line between an exercise of free speech and 'injuring' someone? I don't see any attempt at definition in the language of the legislation.

Oakvale, I just want to tell you I saw your message and will answer this week.

Oh and Torie, no problem, good luck for your barman exam .

[Oakvale]

Yes, good luck Torie!

Governor, none of us want to break out subpoenas but we really do need those questions addressed very shortly, since we'll be drawing up a judgement pending your answers.

[windjammer]

Yes, good luck Torie!

Governor, none of us want to break out subpoenas but we really do need those questions addressed very shortly, since we'll be drawing up a judgement pending your answers.

Fine, I will post it tonight.

[windjammer]

Well,
I'm really sorry, but because of some irl events, I won't be able to write my case tonight.
I will write that tomorrow.
I just want to say I'm sorry. I hope you understand,
Best regards,
Governor Windjammer

[Sol]

I hope the Governor will deign to reply at some point...

In the meantime, I have some further questions.

For the respondent/s -


1.  You concede that the offenses and punishments, such as they are, described in the bill as it stands are so vaguely defined as to be unenforceable, but argue that this does not equate to unconstitutionality. Does the subjectivity and ambiguity inherent in such vagueness not violate the constitutional right to due process? How can someone reasonably be tried under a law where there's no clear definition of what conduct is now illegal?

I would argue that the punishments are adjusted to allow for flexibility in prosecution. For example:

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This explicitly states the conditions (the seriousness and bodily harm from the incident) to guide the prosecution.

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Governor Windjammer may disagree with me in his interpretation, but, as I previously stated, it is my understanding that 'verbal abuse' is covered by the fighting words doctrine.

[Oakvale]

Thanks for your input Sol. Windjammer, are you comfortable with allowing Sol's answers to stand in place of yours or do you still want to submit your own response?

[windjammer]

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This is what I have found by searching the definition of "due process", I wasn't really sure to understand.

This is obvious the section 1 of the LGBT bill doesn’t violate the 2nd point and the 3rd point. But I guess I have to explain why I believe it doesn’t violate the 1st point.
What I wanted  to say by “this law won’t be easily unforceable” is that this will be always difficult to prove that the firing was made on discrimination. That doesn’t mean it violates “due process” because I believe this bill is perfectly clear: the gay community shall not have less rights than other, they couldn’t be fired because of their sexual orientation for instance. But this law won’t be easily unforceable because it is always difficult to determinate if for instance, if the firing was made because of the sexual orientation of the worker. If the judge believes there aren’t enough proofs, he will always decide that businessman isn’t guilty. The Employees Fair treatment Law, which Is a federal law which has the same objective than the section  1 of the LGBT has never been ruled unconstitutional by the court, so I believe Section 1 shouldn’t be ruled unconstitutional because it doesn’t violate due process by its difficult enforceability.
I would like to add that laws can’t be totally specific, so if you invalidate the section 1 because you believe the offenses are too vague, you risk as well to invalidate many other laws.
And for the penalties, I share Sol’s views, it adds flexibility while still being clear enough.So I believe it doesn’t violate “due process”.  In case you believe the penalties violate due process, I believe that only “fine and amend” could be struck down, while upholding the rest of the section. Why? Simply because a federal law already statutes about Section 1 (the Employees Fair treatment), allowing people to challenge their firing if they believed it was on sexual orientation motives. I recognize the MW LGBT section 1 would become useless, but it would still be constitutional, and respect due process.


2) Well, I believe that the Atlasia Supreme Court isn’t made to protect the traditions. So I seriously don’t understand the point with “tradition”. I guess the Supreme Court can reverse previous Supreme Court decisions? Like the US Supreme Court did with segregation?? So I really don’t understand the point.
For the term “injure”, I’m sorry and I apologize. I have used the wrong word, let me be clear, I’m not doing a flip flop about my previous speech, it’s just I have used the wrong word because of a translation’s problem. Indeed, “injure”, I thought it was the same meaning than the french word “injurier”, and after some search, I just realized that “injurier”= offend, insult, because if now I understand correctly, injure= physical attack?? And I believe that the “verbal abuses” mean “insult”, so this is this part that, as I believe, doesn’t violate the right of free speech because liberty isn’t anarchy and that verbal abuses, insults ,… aren’t protected by the right of free speech (see my previous analysis of free speech).

I hope I have been clearer, I have really tried to answer to your questions, and in case you believe I have not correctly answered to your questions (I hope that’s not the case), it was really not voluntary and I will be always available to any other questions you would like to ask me.

Best regards,
Governor Windjammer
And sorry for the delay

[Oakvale]

Thank you Governor, that will be all.

A judgement in this case will be issued following further discussion among the members of the Court.

[Oakvale]

Supreme Court of Atlasia
Nyman, DC

Snowstalker v. The Midwest

Opinion of the Court.

(Senior Associate Justice Oakvale delivered the opinion of the Court.)

After careful consideration of the submitted briefs and the facts of the case, the Court has come to a decision in favor of the petitioner, Snowstalker. The Midwest's Fitzgerald-Cris-Sol Compromise, LGBT Equality, Hate Crimes and Suicide Prevention Act is in egregious violation of the Constitution of Atlasia in several key respects.

At issue in this case are both freedom of speech and equal protection issues and, more generally, the ambiguity of vague, poorly-written legislation.

The petitioner, citizen Snowstalker, argues that §1 of the  act in dispute, which purportedly intends to outlaw discrimination against citizens based on gender and sexual identity, could plausibly be vague enough to allow for, for example, gay citizens who have been fired from their jobs or denied admission to a university to file suit in court since the language is ambiguous enough to arguably imply that it is illegal to fire or deny school admission to a gay person.

The Court notes with some amusement that this act inexplicably fails to define 'LGBT' at any point in the legislation, an issue which appears throughout the bill. Perhaps under this law it is illegal to discriminate against Leninists, Gorbachevists, Bolsheviks and Trotskyists - did the Midwest secretly intend to legally ensure the rights of its communist citizens?

§1 of the Act reads -

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The Court feels obliged to note the truly atrocious standard of writing in this legislation - 'anyone else seen denying anyone who's LGBT the same rights as others shall be subject to' is one of the most tortured sentences this Court has had the misfortune of studying in its long history. We mention this not merely to criticize on grammatical grounds, but because the near illiterate language of the legislation proves to be one of its most significant downfalls in the view of the Court.

The petitioner claims that this section is ill-defined and vague to the point where it may inadvertently lead to it being illegal for a company to fire an LGBT worker, for an admission board to reject an LGBT citizen's college application, and so on.  He argues that the ambiguities in this section effectively make LGBT citizens of the Midwest a special class, given extraordinary rights under the law above and beyond those granted to other citizens. The defense argues that the obvious intention of the legislation is sufficiently clear that such a scenario is implausible.

The Court finds significant issues with §1 of this act. The first, inescapable problem is that the language in the section is so vague and impenetrable that we fail to see how almost any of it is remotely enforceable. It is not clear to us, and we imagine not to the teachers of the Midwest, what constitutes "permitting bullying by peers", for example. Are teachers now liable for any incident of bullying that occurs in their class? The logic of the potential legal nightmare scenario that could unfold in this new world, where virtually anyone is liable to lawsuits and legal action based on entirely subjective premises, seems dispositive to this Court.

In his defense of the law, Governor Windjammer argues with evident passion that "[t]he Supreme Court isn’t made to determinate if the law is poorly written or not, if the law is enforceable or not, but to determinate if the law is C-O-N-S-T-I-T-U-T-I-O-N-N-A-L [sic] or not. "

Unfortunately, the Governor is quite wrong. There is no meaningful distinction between enforceability and constitutionality. An unenforceable law is unconstitutional - how can a law so vague as to be plausibly interpreted in dozens of varying ways by people of reasonable intelligence claim to satisfy the constitutional right to due process?

To quote from one of our distinguished predecessors many years before the establishment of the Atlasian republic in 2004, in Connally v. General Construction Co. (1926),

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The defense is quite right that §1 does not necessarily create, as the petitioner argues, a 'special class' of citizen, immune from firing and guaranteed admission to colleges throughout the region, but the mere fact that the language is hamfisted enough that that is a plausible interpretation leads us to conclude that this section is in stark violation of the Constitution of Atlasia's guarantee in Art. IV, cl. 1 that

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The first section of this act is far too vague to be either enforceable or easily interpreted, and thus we have no choice but to find it unconstitutional and void.

The petitioner secondly draws the Court's attention to an alleged violation of the constitutional guarantee to the freedom of speech and expression within the prohibition on "verbal abuse" outlined in the law, and furthermore argues that criminalizing actions because of a perceived bigoted motive, or in the popular lexicon "hate crimes" is itself inherently unconstitutional. The Court will first examine the objection to this clause on freedom of speech grounds - the "verbal abuse" prohibition, and then discuss the broader objection on the legality of 'hate crime' legislation - the '...when the motives' clause.

Article VI, cl.1 of Constitution states in clear terms -

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The act in question, hereafter referred to as the LGBT Equality Act reads -

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The Court at this point must again momentarily digress to note again with some distaste the dismal standard of writing in this clause - "[p]hysically assault" and "[a]nyone seen violating this law" represent particularly poor efforts at crafting an enforceable legal document. For the defense, respondent Windjammer argues for what seems to this Court to be a remarkable narrow interpretation of free speech, claiming that he "[believes] “free speech” consists in the freedom to speak about everything which injures no one else" - citizens can say what they wish, provided it does not 'injure' another citizen. In his clarifying answers to questions posed by the Court, the respondent states -

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The Court agrees that free speech does not allow for anarchy. But the idea that insults could plausibly be legislated against without violating the guaranteed right of freedom of speech and expression is, to this Court, absurd. Under this exceedingly narrow interpretation of the right to free expression, the only speech protected constitutionally would be bland platitudes and inanities that offend no-one at all. Spirited debate and the exchange of controversial ideas would have no protection under the law. Making fun of someone's favorite sports team could be a criminal offense.

In his much appreciated amicus brief on behalf of the respondent, Mr. Sol argues for a quite different interpretation of the legislation, claiming that the prohibition on 'verbal abuse' should stand under the precedent of 'fighting words' being exempt from constitutional enshrinement. The Court thanks Sol for his amicus, but finds his argument unpersuasive - there is no indication whatsoever in the law - because, once again, the legislators responsible seemingly made no effort to define a single term employed - that 'verbal abuse' should be interpreted in this manner. That the Governor who championed and signed this legislation argues for a far broader interpretation of 'verbal abuse' only serves to further undercut this line of reasoning.

The Court finds no constitutional grounds whatsoever to justify a prohibition on "verbal abuse". The criminalization of harshly-worded expressions of personal beliefs, regardless of how impolite or morally distasteful they may be, is in the considered opinion of the Court contrary to Art. VI, cl. 1 of the Constitution of Atlasia.

[Oakvale]

The petitioner's more general claim in regards to §2 of the LGBT Equality Act is that creating a distinct class of crime based on the perceived motive of the perpetrator and the identity of the victim is itself a violation of the Constitution.

The Court is acutely aware that the question of 'hate crimes' and their constitutionality is a topic of considerable political debate, and that the precedent established in this ruling regarding the constitutionality of 'hate crime' legislation will likely be cited as something of a landmark decision for years to come.

We thus paid particularly close attention to this question.

The LGBT Equality Act reads -

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Putting aside for one moment to bizarre premise of this clause, which seems to imply that physical assault and sexual harassment are perfectly legal provided that the motive is not based on the victim's sexual orientation or gender identity, the problematic issue of creating a special category of crime based not on the act itself but on the identity of the victim and an unprovable interpretation of motive becomes apparent.

The petitioner notes that -

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The Court is inclined to agree. The creation of "hate crimes" - and here we will we do something which the authors of the LGBT Equality Act refused to do at any point and define the term, as a crime (in this instance harassment, assault, murder etc.) that is treated differently to a functionally identical crime solely because of the characteristics of the victim - pose clear problems under two articles of our constitution. The most obvious is another freedom of speech violation - while, to use the most obvious example, physical assault is obviously illegal, punishing a perpetrator under a different class of crime due a perceived personal bigotry constitutes a gross violation of the right to the freedom of expression - the petitioner, correctly in the opinion of the Court, notes that while the Constitution does not explicitly guarantee freedom of thought, the right can be logically assumed given that speech is the expression of thought. We cannot presume to know the motives behind . crimes in all cases, but even where the evidence is apparently ironclad, criminalizing a bigot for their bigotry in addition to their . crime is an infringement on an Atlasian citizen's most fundamental right - the right to hold beliefs and opinions that are immoral, abhorrent or distasteful. The unfortunate reality that sometimes these prejudices manifest themselves in violence against vulnerable groups does not mean that lawmakers can legislate against people holding distasteful or even potentially dangerous beliefs.

The Court also finds the creation of specific 'hate crimes' dubious due to violations of Art VI., cl.3, the 'equal protection' clause, which guarantees all citizens equal protection under the laws of the nation. We pose the following example - if a criminal assaults and kills a citizen in the street, he will be arrested, convicted and imprisoned for this crime. If a homophobic or racist criminal assaults and kills a sexual or ethnic minority in the street, under this law he would be arrested, convicted and imprisoned under an entirely different law. But the former victim is no less dead than the latter - yet, given that these could potentially be considered two different crimes, the latter perpetrator may receive an entirely different - and presumably greater - sentence. This is, surely, a violation of the right of equal protection to any victim of a crime who does not happen to fall into one of the special categories named in this law. The petitioner's claim regarding §1 of the Act, that it creates a privilege class of citizen, in fact applies to the criminalization of 'hate' in §2.

But 'hate crime' legislation's violation of the constitutional right to equal protection is, in fact, greater than that. Perversely, a doubtless well-intentioned law intended to ensure 'equality' in fact infringes on the right to equal protection of perpetrators of 'hate crimes'. To use our previous scenario, in which we outlined how charging two people differently for identical crimes based entirely on the victim's personal characteristics, the violation of the perpetrator's right to equal protection is apparent - they are being charged under a different law, and will be subject to a potentially different sentence, because of who their victim happened to be, despite the issue of motive being inherently difficult to prove.

Even, as noted, where motive is obviously distinguishable the equal protection violation is not lessened - there is still an untenable situation where two people can receive different treatment under the law for the same act.

The Court finds, due to both freedom of speech and clear violation of the equal protection clause, that there is no grounds in the Constitution for the establishment of 'hate crimes' in law as distinct from 'normal' crimes, and we thus find §2 of the Act contrary to the Constitution of Atlasia.

The respondent has argued that, even were this Court to find, as we have, that the most-disputed sections of the LGBT Equality Act are unconstitutional, that we should allow the rest of the law to stand. The petitioner argues otherwise, suggesting that the Act is vague and unenforceable to the point where there are significant public policy arguments for striking it down entirely. The Court has considered both arguments and reached a conclusion on whether to merely sever the specifically addressed sections of the Act or to strike the law down in full.

The Court notes that the LGBT Equality Act contains no mention of a severability clause, although we are aware that this far from rare in Atlasian legislation. The Court will briefly examine the remainder of the legislation. We find that parts of the Act not specifically considered in this judgement are, unfortunately, plagued with the same issues that so sabotage the sections of the bill that we have examined in detail - overwhelming vagueness, a poor standard of writing and an apparent unenforceability that seems to cripple the legislation. §3, cl.1's 'suicide prevention' mandate, while like so much of this bill clearly tragically well-intentioned, seems to be so vague as to be at best completely impotent, and at worst give schools a blank cheque based on how establishments claim their "overall costs and expenses" are used in vaguely-defined "programs [and] clubs".

We are not at all clear on what §3, cl.1's "the Midwest government shall enforce the need" means. Again, the spectre of shockingly atrocious writing arises. If these schools in question - again there is precisely zero attempt at definition - are public the Court is also forced to consider a potential equal protection violation if money is specifically aimed, for example, at the slightly odd goal of helping sexual minorities find friends in school, particularly if, as the unclear language of this clause seems to imply, there is a mandate for schools to accept these funds and use them to run 'clubs' or 'programs' and hire counsellors. §4 is similarly unclear and, as such, quite probably unenforceable. Does cl. 3 of this section imply that buildings (does this legislation apply to all buildings? public buildings?) are required to adopt a bevy of new bathrooms for the several obscure gender identities established in law, since "Midwest citizens shall be able to use any bathroom which reflects their gender identity." The Court admits to slight puzzlement at what a "none of the above" bathroom might consist of, but, more seriously, how this clause is enforceable. Could this mean, for example, perhaps unintentionally, that business no longer have the right to refuse admission to a private bathroom because Midwest citizens "shall be able to use any bathroom[...]"?

This Court has often been critical of clumsy attempts at legalese and formal language that leads to laws being passed with gaping loopholes and errors. What we have encountered less is legislation written so poorly that it is entirely unworkable, to the extent where, as in §1 of the LGBT Equality Act, it leaves us with little choice but to void the offending section for vagueness. While the Court understands and respects the presumably noble motives of the government of the Midwest in the creation of this law, we were, upon reading through the law, shocked by the forest of ambiguities, contradictions and total lack of definition that we encountered.

The Court pauses to, rhetorically, ask how such poorly crafted legislation possibly managed to pass an assembly of several respected and distinguished members and be signed into law by the region's Governor. It is likely that we would not have come to the ultimate conclusion that we did, and that at least some parts of this law would stand, were this semi-literate rambling legislation edited or clarified even slightly by any member of the legislature.

As is, because of the unenforceability and vagueness of the Act, its prohibition on the freedom of speech through an attempt to ban 'verbal abuse, and its establishment of unconstitutional 'hate crimes' in law, and, to a lesser extent, the compelling public policy reasons for allowing the region to craft a more precise, more defined, and constitutional law, the Court has come to the conclusion that the law cannot stand, neither in full or in part.

The Court finds that the Midwest region's Fitzgerald-Cris-Sol Compromise, LGBT Equality, Hate Crimes and Suicide Prevention Act is in violation of the Constitution of Atlasia, and it is hereby struck down in its entirety.

[Snowstalker Mk. II]

I thank the Court for taking the time to analyze the LGBT Equality Act and for its decision on the matter.

[windjammer]

I thank the Supreme Court for having let me defend this bill.

Best regards,
Governor Windjammer

[bgwah]

I concur.