Feb. 2, 2010- Titulia v. OwenMerry  10GC00005
Rendered by: Chief Justice Colonel, Associate Justices Boyd X. Biggs and Scud69

Chief Justice Colonel for the majority: 

Facts:

On January 22, 2010 at 2032GMT, OwenMerry posted a comment for the public’s consumption in the Candidates’ Debates Forum of the republic.  He stated:

“There's two problems i have with the situation.

Colonel is being a dickhead about this. He directed me to the court website, which gives the option to file a criminal complaint. If ordinary citizens cant file criminal complaints, then why the fuck is it an option? Colonel was being abusive to me the court, and I wont have any of it. He's a fucking cunt for wasting my time. He should have said at the start that I was bring it to the attention of the AC instead of ignoring the fact the court website says I can file a criminal complaint.

The other thing is that nobody should have to hire a lawyer to bring a criminal case to court.  All citizens should have the equal chance to justice. No matter what is in their bank account. That fucking cunt mightnt care about my "egalitarian views", but fuck him and the Linardists. The general courts were brought in under Dr.manhaton without any warning to the rest of us. I have siad from day one that this unquestionable system will lead to abuse, and I was right.


Greg the slimey fucking turd still hasnt put the RNC Daily on the News stand or the other private medias. He is using his government powers to diminish the freespeech of the oppostion.

He has put his own private business in the front page. Why am I the only with a problem with that? This is the Linardist way! They abuse every power they get.

Dr.manhaton as an attorney genral now has a compiled version of the events and fresh links to eveidence. Is he pursueing it? No. He set up an unquestionable authority and he is a Linardist. If he isnt looking into the situation, its proof the all he wants is power and wealth for the boys.

I could had a Republican option, but no. We have been denied a candidate and the court and the AC dont give a shit because it profits them. Corrupt scum.” (sic)

The Department of Justice filed complaint against OwenMerry on January 24, 2010 for breach of Titulia’s Terms and Conditions citing the expressed ban on “excessive profanity.” 
Analysis:

 Before entering into the legal analysis of the specific crime, the Court will take the opportunity to discuss three legal issues raised by the Defendant’s counsel before and during the trial.  These issues are the discovery request, the attempted use of materials not in the Defendant’s submissions during the trial, accusations made at unnamed members of the Court, and the Court’s jurisdiction over this matter.   

First, the materials that Mr. McVicker requested in his Motion for Discovery fell under the Doctrine of Attorney Work Product.  The only materials due another attorney in the preparation of a defense are those materials that are central and necessary for developing that defense.  These materials must be evidence that the defense may submit to the Court to provide a reasonable doubt to the Court.  Materials gathered by the plaintiff in an effort to ascertain the truth before proceeding with a claim do not fall under this category.  They represent the labor of the opposing counsel and are not discoverable.  In this matter, Mr. McVicker had all of the necessary facts available to him to develop a defense. 

Second, defense counsel attempted to use materials and facts that were not found in his submissions to the Court.  This is not permitted in the current system because time must be provided by opposing counsel to examine and consider counterarguments to the evidence and arguments.  An exception to such a rule would be materials that were undiscoverable at the time submission was made but came to light thereafter.  Even in that instance, the Court would need proof as to why the materials were hidden and then discovered. 

Third, the Court will never countenance accusations made toward its members during the course of a trial.  In the present case, the issue was whether OwenMerry had violated the Terms and Conditions of the site.  There was no room for discussion as to whether others had ever committed a crime.  In fact, if others had committed a crime, then it was for the citizens to alert the Attorney General of the crime and allow the Department of Justice to review the matter. 

Fourth, Defense counsel argued that the General Court had no jurisdiction over the matter because Admin should adjudicate matters dealing with the Terms and Conditions and that should the Court find against the accused, the Court would breach his rights in the Bill of Rights.  Subsequently, Defense counsel agreed that Admin had ceded jurisdiction of matters of the first instance to the General Court with regard to breaches of the Terms and Conditions.  Then, Defense counsel agreed that the Terms and Conditions superseded the Bill of Rights.  Thus, the Court concludes that it has jurisdiction to hear this matter and bring judgment upon it. 

Having discussed these ancillary matters, the Court will now turn to the legal issues of the case.  Crimes consist of two portions: the actus reus and the mens rea.  In other words, one must have intent to commit the crime and then actually commit the crime.  During the trial, the accused was offered opportunity to testify on his own behalf, which his counsel refused.  When asked whether it was indeed OwenMerry who had said these things, Defendant’s counsel admitted that the accused had said them.  Thus, the actus reus was proven.  Without question from the Court, Defendant’s counsel offered that the accused had made the statements as a political speech and with purpose.  Thus, the mens rea was proven.  Thus, both portions of the crime were admitted to be true by the accused’s own counsel. 

The Court would like to take the opportunity to examine two issues attached to this examination: whether the speech was political speech and thus protected and whether the speech was excessive.  Madame Justice Scud69 closely examined the accused’s counsel as to whether the speech were political in nature.  She asked specifically how the use of the phrase “fucking cunt” could be construed as a political statement.  Defendant’s counsel failed to answer that question.  The Court will.  In order for speech to be political, it must be directed at a governmental body or position, not at an individual.  As the quoted material above demonstrates, much of Mr. Merry’s tirade was directed at individuals and consisted of ad hominem attacks.  Jurisprudence has previously allowed for profanity to be used in the expression of political views.  In particular, the American courts, world renowned for their defense of free speech, allowed garments that used profanity when it protested a war but not when it was ad hominem against a particular individual.  So, had the accused directed his diatribe at the Court or Liberty House, he would have been protected.  In this case, he directed it at individuals and is not. 

Second, the Court will examine the issue of what is considered “excessive.”  The Attorney General proposed that Court apply a reasonable person standard.  The Court agrees.  Should the average person find the language to be outside the realm of normal discourse for Titulia and should the speech be qualitatively and quantitatively offensive to the average Titutlian, then it will be deemed “excessive.”  There is little doubt that the excerpt above reaches both of these levels.  While there may be a minority of Titulians who are from a culture that ignores profanity, the average citizen finds this quantity and quality of profanity to be excessive and offensive.  To use Justice Potter Stewart of the United States Supreme Court’s comment on obscenity, “I know it when I see it.”  So too does this Court know excessive profanity when it sees it. 

Verdict:
The Court finds OwenMerry to be guilty of breaking the Terms and Conditions of Titulia by using excessive profanity in a public sphere.  He is ordered to pay T$1000 to the government of Titulia for his offense.
 


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