Posted by Larry Hoover on September 4, 2004, at 12:34:11
At the outset, let me state that I have remained silent up until now, not because I do not care, but because I, in fact, care too much.
I do not believe that it is fair to zen, to obtain a block of 48 weeks, as she expresses her feelings of vulnerability. I do not believe it is fair to chemist, to receive a block of 4 weeks, as he came under verbal provocation, and administrative aid was not at hand. I do not believe it is fair that chicklet is blocked for 32 weeks for caring more about the welfare of another than about her own.
The mere publication of a set of rules is not sufficient to render them comprehended. Nor does that publication necessarily foresee all circumstances, both mitigating and aggravating, which should always colour jurisprudence. Justice is more than a literal reading of law.
How is it that the only possible warning in our collective Rules is the PBC? How is it that a deputy cannot even respond to a thread until there is both a provocateur and a provacatee? How is it that the minimum penalty can be so harsh as to be 48 weeks in duration?
California enacted a third strike law. A third felony conviction, no matter what any of the three might have been, mandates a life sentence. This leads to farcical sentences, which must surely lie in the realm of cruel and unusual punishment. But what is seldom considered is how many felons, facing the potential of a third conviction, flee, or fight to the death, to avoid being brought before the courts? Do we have something like that, here? Consequences so out of touch with the offense, that posters simply reinvent themselves, and re-enter Babble to strike with impunity, while those with more integrity suffer within the law? I have many such questions, and I am forced to consider new answers.
Where was the compassion in the dialogue with zen? There is an extraordinary power imbalance when the arbiter of blocks is also being questioned about his own policy. It may well be true that the emails in question did not have a real link to the Babble site. That does not invalidate the fear that they were. Would not a compassionate response have also included a technical discussion of the information embedded in headers? What spoofing is? How things can easily not be as they seem? 48 weeks for being afraid? I can think of many more appropriate and compassionate forms of response than that. Focussing solely on the civility of language, while ignoring the theme of the message, is not a sufficient reply. The administrative issue remains unresolved, and arguably, only because the administrator chose to wield his power first.
Chemist came under direct and personal criticism. His response was to seek assistance (by posting to admin), and to protect his integrity with his own words. Perhaps he did stray into sarcasm, but it is indeed arguable that his remarks were very pointedly meant to be taken literally. Given the tardiness of the administrative response, and the clear differential in both tone and content of the opposing factions, I believe it to be totally unfair to have issued a block to chemist. There was a clear provocateur, and as in hockey, the instigator should take the responsibility. Only if chemist had replied *in kind* would it have been reasonable to penalize him. One ought not to be punished for self defense, and the law clearly recognizes that as a defense against criminal sanction. It is entirely exculpatory. So why is it not exculpatory here? Upon coming upon the scene of verbal battle, the administrator could reasonably issue penalties to one side, while warning the other to desist. Only the failure to respond to the presence of administrative authority would then become the issue, i.e. if chemist did not, in fact, desist.
The third case involves something with which I cannot be objective, but nonetheless, I can make a critical remark about the administrative action. Would it have been unreasonable to have simply warned the three posters who wanted to "pass the hat"? Or, upon seeing the second such post, declare than from that point onwards, any further posts would be dealt with as in the Rules (i.e. harshly)? Removing the identifying details from the existing posts was sufficient to render their message moot. Banning someone for 32 weeks is not moot.
As many posters have raised, in numerous threads on this board, fairness is not merely adherence to rules. Is it not fair to say that only those cases where justice has not been seen to be done engender this massive outpouring of expression? There is more at stake here than these three cases. (I apologize for not including other examples of unfair blocks. I am under "block overload" at present. I am in shock.)
Are there other ways to manage the site fairly, that recognize the inherent demand for civility, without the invocation of the harshest of penalties when mitigating factors exist? Are there sufficient gradations of sanction in the administrative response? Will we permit Dr. Bob to invoke a new power?
What new power? How about something like, "Despite the literal violation of the Rules, mitigating circumstances in this case lead me to assign the following penalty....." So many times, I see massive violation of civility on one side, and minor technical violations on the other, with equal penalties distributed. Unequal crime, but equal penalty. I'm almost tempted to unleash my full vocabulary, rather than to even attempt to walk the line of civility. At least then, I'd get my "block's worth". Just like a felon going down for the third strike. You might get quite the opposite reaction than the law intends.