jonschlinkert
commented
5 years ago The covenant is too america-centric and could be unapplicable e.g. in european law systems.
The contributor covenant is additive to existing laws, it is not a legal agreement, nor does it express any intent to uphold or reinforce laws. Its purpose is to "foster an atmosphere of kindness, cooperation, and understanding" and to "...signal your intention to make your open source community welcoming, diverse, and inclusive". The covenant doesn't need to express law, since laws already do that for themselves.
IMHO a more appropriate way to view the contributor covenant is that it covers scenarios where:
- Unwanted behavior is technically "legal"
- Unwanted behavior may not technically violate the Terms of Service of the commercial application you're using, and thus cannot be resolved (or easily be resolved) by reporting the behavior.
- Matters are left in the hands of the project's maintainers to resolve
We can not extend the middle finger to a cop and claim to be safe by the first amendment. We can be prosecuted for insulting somebody and have to pay a hefty fine.
The kind of behavior already obviously violates the contributor covenant and would be unwelcome in any part of the world, including the U.S.
Aside from that, it seems that your interpretation of Freedom of Speech in the U.S. is limited. The First Amendment says that "[speech is] protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial", but it does not protect speakers against private individuals or organizations. While the U.S. believes that Freedom of Speech is, in fact, a basic human right, and the First Ammendment prevents the governement from silencing, editing, or sensoring U.S. citizens, the First Ammendment does not blanketly protect citizens against other citizens.
There are also, in fact, a number of notable exceptions to the First Ammendment, including the following (see https://constitutioncenter.org/interactive-constitution/amendments/amendment-i/the-freedom-of-speech-and-of-the-press-clause/interp/33):
(As a side note, my father was a police officer for 25 years. I can assure you that the First Ammendment did not protect me when I gave him the middle finger when I was 14 years old).
This sentence should be removed or clarified. It violates lex scripta and the unity of regulations of same quality.
It doesn't violate lex scripta of any jurisdiction, anywhere (nor does it violate lex non scripta for that matter). The document is not giving exceptions to laws, it gives maintainers the ability to supplement any additional language, making it additive to existing statutory and/or common laws, irrespective of your where you live in the world.
nateberkopec
The covenant is too america-centric and could be unapplicable e.g. in european law systems.
While in the US a nearly limitless freedom of speech is granted, in europe we dont have such limitless freedom. We can not extend the middle finger to a cop and claim to be safe by the first amendment. We can be prosecuted for insulting somebody and have to pay a hefty fine. But on the other hand, we have the right to be inpolite and harsh in words as long as we dont insult anybody. And we can not be forced to express something what we dont accept. On the other hand, we have not the right to use our freedom of expression on every platform. So if somebody is posting something on a github project and gets banned, he still can fork the project and can still exercise his freedom of expression. But problems arise, when the CoC is applied by a government office or by some company with a monopoly on the platform. Then our german constitution enforces even for the internet company our freedom of expression and forbids banishment for even rude speech.
So if the CoC wants to be more european inclusive it needs some structural changes.
Maybe the wording from the Article 14 of the EHRC should be adopted:
With "or other status" you could cover e.g. the status as a refugee or the status of being second born chinese child when they were (and probably still are) discriminated by the chinese government because of the one-child-policy.
The issue here is, that it is violating the lex scripta rule for negative sanctions. So I would recommend to make it a strict listing of forbidden behavior, which result in sanctions. So instead it should be saying something like:
Probably the use of "sexualized language" is too restrictive and the removal should be reconsidered. If somebody writes in a chat "fuck it" or when in the Linux source code the word "fuck" was written, than this can be sexualized language, despite the fact it can be interpreted as a harmless expression about dissapointment etc.. If somebody from a project writes to his best buddy in the project a non-offensive "fuck you" can result in a violation of the CoC, despite the fact, they were both consenting in the use of such language. So it should be removed or restricted to real offensive cases.
This sentence should be removed or clarified. It violates lex scripta and the unity of regulations of same quality. You should not be forced to search different places to find maybe something which clarifies representation of the project. If there are clarificiations and definitions, than they should be in the CoC and not somewhere else.
That is for now...