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Rule of Law – Dr8Sides and Zack Hall

Dr8sides (Gerald Freas) tweets “compromising” photos

A player in Grand Prix Nashville (Gerald Freas, dr8sides on Twitter) was taking photos of other people at the tournament site, uploading them to Twitter, and adding insulting comments to the photos. He was trying to make his friends laugh by making fun of people. What he did was a form of bullying given the nature of the comments. He was banned from DCI events for 18 months. He never received a warning from the DCI, he was just banned.

I have to be clear about what I’m not saying first so that we can discuss what I am saying without confusing one for the other. When joking around, there is a line you can cross (or perhaps several lines in many directions depending on how you visualize this kind of thing) after which your jokes are cruel, inappropriate, unsporting, mean, and/or worthy of serious criticism. Dr8Sides tweeted some photos and comments from GP Nashville that crossed this line. I wouldn’t have tweeted these photos and comments. I don’t want someone else tweeting these photos next week. So I’m not saying Dr8Sides did nothing wrong and should have been allowed to continue those types of tweets indefinitely.

What I am saying is that enforcing the “inappropriate joke” boundary by banning someone for 18 months with no prior warning is not the right way to enforce the rules. You might have no sympathy for Gerald, but I don’t hesitate to say that I do. I’ve made many jokes, both at Magic tournaments and elsewhere, and some of those jokes crossed the line. I’m not proud of the impact that a mean joke can, and has, had on the subject of the joke. While I regret making certain mean jokes in the past, I don’t want to stop making jokes altogether, or be so concerned with crossing the line that I never try to skirt it. A punishment like this risks having a chilling effect on humor and expression in general. It wouldn’t have been difficult to send a similar message about this particular type of conduct while not sending the message that mean jokes can be punished excessively without warning at any time.

Patrick Chapin wrote a blurb at the end of a recent article that criticized both Gerald’s conduct and my and others’ reaction that a warning should have been issued. Chapin’s blurb manifests unequivocal approval of the DCI action and condemnation of dr8sides’ conduct. His discussion of the issue is important, as he is among the most influential handful of writers. I fear that the lack of nuance in his piece and in much of the supportive reaction to it risks throwing the baby out with the bathwater.

Chapin opines, “The defense of ‘I should only have gotten 6 months or a year,’ is particularly absurd. If one knew that their actions were deserving of getting banned, they can hardly ask for sympathy that they underestimated just how long of a ban they were earning.”

Why is questioning an arguably excessive punishment “particularly absurd” just because one suspected some punishment to follow? If I punch someone in a bar fight, I can’t be justifiably outraged if I get sentenced to 10 years in prison? I knew I might get punished, so my case is not sympathetic at all? Examples here are trivially easy to generate. Any conduct that should be punished is subject to a debate about how much punishment should follow. The real absurdity here is reproving any discussion of whether the punishment was appropriate, just because we all agree the conduct was reprehensible (and people certainly will disagree as to how reprehensible).

Chapin goes on, “If someone is taking compromising photos and attaching extremely cruel commentary with the express purpose of ridiculing and hurting people at Magic tournaments, why in the world wouldn’t WotC show them the door?”

I know Chapin chooses his words carefully, knowing many will read them, so I must carefully and specifically object when he goes awry. A photo of a person sitting or standing in a public place isn’t a “compromising photo.” Making fun of that person’s appearance is separate conduct that might very well be insulting, but that doesn’t make the photo itself “compromising” or some violation in and of itself. As others have joked, the coverage staff has taken embarrassing photos of players and spectators over the years, but those photos aren’t compromising. To my mind, compromising photos means exposing something concealed or secretive about the person. The Google Dictionary top result for “compromising” is

“com·pro·mis·ing
adjective
1. (of information or a situation) Revealing an embarrassing or incriminating secret about someone”

Next, I’ll turn to “with the express purpose of ridiculing and hurting people at Magic tournaments…” Chapin must be using “express purpose” purely for effect here, since dr8sides never expressed his purpose, and certainly did not express the purpose of hurting people at Magic tournaments. Again, Chapin’s diatribe becomes a definitive source of opinion on an important topic the second it is published, so I don’t think I’m excessively nitpicking the way in which he went after dr8sides.

Chapin continues: “Some people wonder why he didn’t get a warning first. A warning? What do you think he got all weekend on Twitter, where he was putting on a show? He loved the attention and only upped the ante after being warned.”

Gerald insists he never received a warning, wasn’t kicked out of the site, and wasn’t spoken to in any way by a Wizards employee until he received an email telling him he was banned for 18 months. I guess I have to classify this, then, as a failure to agree on the reality of what actually happened. If Chapin can’t spot the warning Gerald received from Wizards, it is irresponsible for him to assert as fact that he received warnings and continued. If Chapin is saying that twitter users, other than Wizards employees, were giving the “warnings” then he doesn’t understand what we mean by warning. I’ve had people comment on my mtglampoon.com articles that they didn’t like this or that or were offended by this or that or I should stop this or that. Those aren’t warnings issued in advance of punishment that indicated to me that I should stop or else I will be punished.

Chapin concludes with, “Free speech is a right, but coming to Magic tournaments is a privilege. This doesn’t mean everyone needs to be on some kind of martial law crackdown on making fun of people or anything. There’s a big difference between jokes, even insults, and the kind of deliberate, prolonged cruelty that led to this ban. Be a freaking halfway decent human being and there will be no trouble at all. You want to be part of the community? Act like it.”

(Disclaimer: if you don’t know how metaphors work, stop reading here. Comparisons to the criminal justice system or other parallel structures with similar goals and means of communicating those goals to the public doesn’t mean that criminal conduct is the same thing as Magic floor rules violations or that every type of conduct metaphorically mentioned is in any way on equal moral footing). Countries that believe in “free speech principles” differ in their criminal justice systems along an interesting axis: whether or not they ban holocaust denial. The US does not ban it, as judicial interpretation of the constitution has found that type of limitation too restrictive. Other countries (some in Europe, for example) are of the opinion that while free speech should be promoted and much disagreeable speech should be tolerated, holocaust denial goes too far, has no legitimate purpose, and is so potentially harmful that it should be banned. American courts make exceptions too, for threats and the classic “yelling ‘Fire!’ in a crowded theatre” misstatement, as well as for hate speech in certain contexts (perhaps when accompanied by other unprotected speech or conduct such as a threat; I’m not fully up to speed on the law of hate speech).

So what’s the point of that description of the difference between US and certain European approaches to free speech and holocaust denial? While Chapin states that “Free speech is a right, but coming to Magic tournaments is a privilege,” he didn’t, I estimate, consider why free speech protection is so broad in the US (its breadth in general is a hallmark of the modern western world, but is particularly broad in the US)? The reason protection is extended to such unpopular and demonstrably false ideas as holocaust denial is that to ban “false and hateful” speech necessitates some authority deciding what speech is “false and hateful.” Holocaust denial is false and hateful on today’s list, but what will make the list tomorrow? Our founders and courts have decided that having no list at all, or a clearly defined and inflexible list, of impermissible speech, is preferable to the potential tyranny of a flexible list.

Prohibiting certain types of speech is a dangerous and potentially slippery slope. So is banning certain types of jokes at Magic events. Acting without a clear list or clear guidelines for what conduct is ban-worthy is especially problematic. I tweeted that I’m not confident that this article I published is so clearly different from the dr8sides tweets that it couldn’t have resulted in me getting banned from the DCI.

People were quick to draw their own distinctions and imbue them with the power to decide the matter. “Those are your friends” “you didn’t take photos at an event” “you were being light, not cruel.” If you say so. Not everyone in the article is a close friend. I used photos from event coverage. My tone isn’t clear to every reader. And, perhaps most importantly, there is no evidence any of these distinctions matters to whoever decides my fate.

Chapin’s proposed test of “There’s a big difference between jokes, even insults, and the kind of deliberate, prolonged cruelty that led to this ban. Be a freaking halfway decent human being and there will be no trouble at all” is one of those “you’ll know it when you see it” tests that I find troubling. Again using US law as a metaphor, I can’t stand the current tests used to determine whether something is “obscene.” It’s more complicated than I care to discuss, but one key description given by the Supreme Court is that “you know it when you see it.”

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” [Emphasis added]. -Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964).

I’m of the opinion that if you can’t define it, you shouldn’t be able to proscribe it, or at the very least you should err strongly in favor of allowing everything, and only carefully and transparently deviate from that allowance. Likewise with the Magic rules, if you are unwilling to provide guidance as to what constitutes unsporting behavior, I believe you should err on the side of allowing conduct and of giving warnings that define the boundaries for current and future violators.

I believe that either a “stop, or else!” warning or a 3-6 month ban of Gerald Frease would have been more appropriate in this case than the 18 month ban without warning.

For added clarity, I’ll use yet another example from the law. I don’t need to condone Gerald’s conduct in order to rationally believe his punishment was excessive, any more than someone who believes DUI penalties are excessive is condoning DUI. Two principles seem to constantly be ratcheting up the punishment for DUI to now perhaps excessive levels (the same is true of all the drug laws). First, campaigning on “law and order” and increased punishment is more palatable and popular than campaigning on “lawnessless” or reduced or even rational sentencing. Second, changes happen incrementally, and each seems like a reasonable additional punishment. Only over time do you go from minor penalties and a .15 BAC limit to .08 and extreme punishment. It starts with .12 BAC and somewhat greater enforcement, which isn’t that far a stretch. Then .10 is the BAC and you can do jail time (this isn’t a historical account, just illustrative), and eventually through small steps you get to .08 and a suspended license and mandatory counseling, etc.

Drive drunk? [email protected]!% you! might be popular, but it isn’t civilized discourse. I’d like to enforce the rules we decide are fair, but only in a fair way. When Chapin writes “Steal bags? F#$% you.” And refuses to discuss whether punishment could be excessive, I wonder what ground he will have to stand on when someone suggests that thieves get their hands chopped off.

Zack Hall vs. Mike Flores; milling with misunderstandings

In Zack Hall’s words, “We were in game one, I had 3 land (tapped) and 4-5 cards in hand. He has 1 land and an [card]Aether Vial[/card] on one counter. I pass the turn and he EoT Vials in [card]Nomads en-Kor[/card]. He untaps, ticks Vial up and puts in [card]Cephalid Illusionist[/card]. Mike flashes me a [card force of will]Force[/card] and a blue card and says, “I have you”. I have no instants in hand, so I know it’s probably true that I’m dead. My response is, “Show me”.

Here is where things get tricky – he flips his deck into where his graveyard would be – no cards had gone to the yard this game. He shortcutted the Illusionist ability to mill his entire deck, not 3 by 3 as would have ensured him a win. He pulls out his [card]Narcomoeba[/card]s and is looking for the [card]Dread Return[/card] when I motion with my hand like I want to see his graveyard. He hands it to me to look through, which I do.

Then I let him know he’s dead – I say, “Let me know when you want to move to your draw phase”.”

It is clear to all who understand the rules that a judge will rule in Zack’s favor and judges cannot resolve the miscommunication in Mike’s favor because there is no rule that “show me” means anyone will be forced to concede at a later point. I thus conclude, as I think we must, that Zack Hall did not cheat.

But is cheating (or perhaps more broadly, violating the Magic rules) the only way one can be blamed for his/her conduct? I think that among friends, and perhaps even among non-friends, there are social norms that are accepted in Magic. So while I don’t think Zack violated the rules, I would not have done what he did against a friend. Mike’s only recourse appears to be to no longer consider Zack a friend absent a heartfelt apology, which doesn’t appear forthcoming.

As with many issues, protecting yourself from being caught in Mike’s shoes means communicating clearly and proceeding with caution wherever it isn’t clear what someone means. “Show me” could mean “show me your win condition and I’ll concede” or “Proceed with the combo please, I want to see you do it.” Among friends, a misunderstanding should be corrected, and Zack should concede the game or simple ask Mike to back up and actually do his thing. Among non-friends (or soon-to-be-non-friends), one must decide whether he/she is comfortable taking advantage of the misunderstanding and not allowing the opponent to back up, and I think both positions are defensible.

Why am I advocating potentially treating friends differently from other opponents? Because I want to relax a little bit more when I play against my friends, and I also want to use mutually beneficial social agreements. Playing against a friend, I will always concede in the last round if they need the Pro Points and I have no use for them. Is there a rule saying I have to? Absolutely not. Would I do it for anyone who asked? Not necessarily, no. I expect my friends would reciprocate, and I would do it for anyone who I feel would reciprocate. This is win-win strategy for me and my friends. Where enforcement isn’t possible, trust and reputation “bind” us sufficiently so that we can get to the win-win arrangement. Again, none of this is in the rules.

Similarly, going through every step of every combo in a game between friends takes time off the clock and expends mental energy. In some contexts, I will continue to ask friends to scoop and I will scoop to their similar requests. If one of them misinterprets something else I say as an offer of this kind, I won’t hold them to this misinterpretation, for all they were trying to do is save time and mental energy, and I’m able to back them up and clarify what I really meant.

Zack Hall isn’t a terrible person, he just has a different view on this issue, or he doesn’t consider Mike a friend who would reciprocate if a similar misunderstanding went in the other direction. Reputations are used to hold together social agreements like “scoop when a friend needs the win much more than you do” and I do wonder if Zack has mortgaged that reputation among his friends in order to get this win vs. Mike.

Discussion

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