Further Thoughts On Moderation v. Discretion v. Censorship

from the playing-semantics dept

Welcome back to Techdirt's favorite faux game show, Playing Semantics! This week, we're diving back into the semantics of moderation, discretion, and censorship. As a reminder, this bit is what we were arguing about last time:

Moderation is a platform operator saying "we don't do that here." Discretion is you saying "I won't do that there." Censorship is someone saying "you can't do that anywhere" before or after threats of either violence or government intervention.

Now, if we're all caught up, let's get back into the game!

A Few Nits to Pick

In my prior column, I overlooked a couple of things that I shouldn't have. I'll go over them here to help everyone get on the same page as me.

  1. anywhere — In re: "you can't do that anywhere", this refers to the confines of a given authority or government. It also refers to the Internet in general. Censors work to suppress speech where it matters the most (e.g., within a given country). Such censors often carry the authority necessary to censor (e.g., they work in the government).

  2. violence — "Violence" refers to physical violence. I hope I don't have to explain how someone threatening to harm a journalist is a form of censorship.

  3. government — This refers to any branch of any level of government within a given country. And anyone who uses the legal system in an attempt to suppress speech becomes a censor as well. (That person need not be an agent of the government, either.)

Censorship or Editorial Discretion?

From here on out, I'll be addressing specific comments — some of which I replied to, some of which I didn't.

One such comment brought up the idea of a headmaster as a censor. Lexico defines "headmaster" as "(especially in private schools) the man in charge of a school." We can assume a headmaster is the highest authority of the school.

In a reply to that comment, I said the following:

If the headmaster is a government employee, they're a censor. If they're the head of a private institution, they're a "censor" in a merely colloquial sense. The privately owned and operated Liberty University (henceforth Liberty U), for example, has engaged in what I'd normally call "moderation" vis-á-vis its campus newspaper — which, despite it being a frankly immoral and unethical decision, Liberty U has every right to do as a private institution. (Frankly, I'd be tempted to call such people censors outright, but that would kinda go against my whole bit.)

But the example I used gave me pause to reconsider. Jerry Falwell Jr. (the "headmaster" of Liberty U) and free speech have often come to metaphorical blows. I noted this through a link to an article from the blog Friendly Atheist. The article has a quote from a former editor for Liberty U's school newspaper, who describes how Falwell's regime ran the paper:

[W]e encountered an "oversight" system — read: a censorship regime — that required us to send every story to Falwell's assistant for review. Any administrator or professor who appeared in an article had editing authority over any part of the article; they added and deleted whatever they wanted.

That raises the important question: Is that censorship or editorial discretion?

After reading the Washington Post article from which that quote comes, I would refer to this as censorship. I'll get into the why of my thinking on that soon enough. But suffice to say, "editorial discretion" doesn't often involve editors threatening writers with lawsuits or violence.

But though I call that censorship, some people might call it "moderation" or "editorial discretion". Falwell is, after all, exercising his right of association on his private property. What makes that "censorship" are the at-least-veiled threats against "dissenters".

Censorship Via Threats

Speaking of threats! Another comment took issue with how I defined censorship:

Why should it be "censorship" to threaten someone with a small financial loss (enforced by a court), but not to kick them off the platform they use to make the bulk of their income (independent of the government)? Is "you can speak on some other platform" fundamentally less offensive than "you can speak from another country", or is that merely a side-effect of the difficulty of physical movement?

To answer this as briefly as I can: A person can find a new platform with relative ease and little-to-no cost. No one can say the same for finding their way out of a lawsuit.

But that raises another important question: Does any kind of threat of personal or financial ruin count as censorship?

As I said above, the Liberty U example counts as censorship. As for the why? The following quotes from that WaPo article should help explain:

Student journalists must now sign a nondisclosure agreement that forbids them from talking publicly about "editorial or managerial direction, oversight decisions or information designated as privileged or confidential." … Faculty, staff and students on the Lynchburg, Va., campus have learned that it's a sin to challenge the sacrosanct status of the school or its leaders, who mete out punishments for dissenting opinions (from stripping people of their positions to banning them from the school).

School leaders don't have the power of government to back their decisions. But they can still use their power and authority to coerce other people into silence. ("Stop writing stories like this or I'll kick you out of this school and then what will you do.") Even if someone can move to another platform and speak, a looming threat could stop them from wanting to do that.

And the threat need not be one of financial or personal ruin. Someone who holds a journalist at knife point and says "shut up about the president or else" is a censor. The violent person doesn't need government power; their knife and the fear it can cause are all they need.

Money and Speech

A comment I made about companies such as Mastercard and Visa elicited a reply that pointed out how they, too, are complicit in censorship:

I cited Visa and Mastercard specifically because they are at the top of the chain and it's effectively impossible to create a competitor. If they say something's not allowed it isn't unless you want to lose funding. Paypal has been notoriously bad about banning people for innocuous speech over the years, but there are other downstream providers that aren't Paypal (although if all of them throw someone off, it still erases the speech). I am of the opinion that high-level banks should be held to neutrality standards like ISPs should due to their position of power. Competitors would be preferable, but the lack of either is frightening.

They make a good point. Companies like Visa can legally refuse to do business with, say, an adult film studio. So can banks. This becomes censorship when all such companies cut off access to their services. An artist who creates and sells adult art can end up in a bad place if PayPal cuts the artist off from online payments.

As the comment said, creating a competitor to these services is nigh impossible. Get booted from Twitter and you can open a Mastodon for instance; get booted from PayPal and you're fucked. That Sword of Damocles–esque threat of financial ruin could be (and often is) enough to keep some artists from creating adult works.

It's-A Me, Censorship!

Ah, Nintendo and its overzealous need to have a "family-friendly" reputation. Whatever would we do without it~?

Remember when Nintendo of America removed, or otherwise didn't allow objectionable material in their video games until Mortal Kombat came about and there were Congressional hearings and then the ESRB was formed?

Would you call what Nintendo did censorship or moderation? There's an argument for moderation in that it was only within their purview and only on their video game systems, but there's also an argument for censorship in that once the video games went outside of the bounds set by Nintendo of America, they were subpoenaed by the Government with threats of punishment. The ESRB made their censorship/moderations policies moot, but it's an interesting question. What do you think, Stephen?

This example leads to another good question: Do Nintendo, Sony, etc. engage in censorship when they ask a publisher to remove "problematic" material?

Nintendo can allow or deny any game a spot on the Switch library for any reason. If the company had wanted to deny the publication of Mortal Kombat 11 because of the excessive violence, it could've done so without question. To say otherwise would upend the law. But when Nintendo asks publishers to edit out certain content? I'd call that a mix of "editorial discretion" and "moderation".

Nintendo has the right to have its systems associated with specific speech. Any publisher that wants an association with Nintendo must play by Nintendo's rules. Enforcing a "right to publication" would be akin to the government compelling speech. We shouldn't want the law to compel Nintendo into allowing (or refusing!) the publication of Doom Eternal on the Switch. That way lies madness.

Oh, and the ESRB didn't give Nintendo the "right" to allow a blood-filled Mortal Kombat II on the SNES. Nintendo already had that right. Besides, Mortal Kombat II came out on home consoles one week before the official launch of the ESRB. (The first game to receive the "M" rating was the Sega 32X release of DOOM.) The company allowed blood to stay because the Genesis version of the first game — which had a "blood" code — sold better.

That's All, Folks!

And thus ends another episode of Playing Semantics! I'd like to thank everyone at home for playing, and if you have any questions or comments, please offer them below. So until next time(?), remember:

Moderation is a platform/service owner or operator saying "we don't do that here." Personal discretion is an individual telling themselves "I won't do that here." Editorial discretion is an editor saying "we won't print that here," either to themselves or to a writer. Censorship is someone saying "you won't do that anywhere" alongside threats or actions meant to suppress speech.

Filed Under: censorship, discretion, editorial discretion, moderation


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  • icon
    ECA (profile), 23 Jun 2020 @ 12:35pm

    Censorship

    the idea that 1 person, 1 group, thinks or has control of what IS/is not.
    Right or wrong, its the expression of. "I/we are right, and you are wrong.
    Be it the principle, the Gov., your parents, Pharma, Corps, Anyone with such an opinion.
    Even an Ikea manual.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Jun 2020 @ 1:16pm

    meh

    reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 23 Jun 2020 @ 1:18pm

    I Dont Want You Saying That Anywhere

    In a day and age of voluntary "follows" and internet corporation monopolies, "we don't do that here" really breaks down. "We" attempts to minimize the million followers, and "here" attempts to minimize the 99% market share, beyond the point of believability.

    reply to this | link to this | view in chronology ]

    • identicon
      TFG, 23 Jun 2020 @ 1:21pm

      Re: I Dont Want You Saying That Anywhere

      Please provide actual evidence to support your assertion of an anti-conservative bias.

      Please also answer why your blog that allows comments should be forced to host racist content.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 23 Jun 2020 @ 3:56pm

        Re: Re: I Dont Want You Saying That Anywhere

        Suggestion..

        RACIST is a word.. its the comment thats the problem.
        A rant based on derrogatory CRAP, isnt a reasoning thought or much of a comment.

        IF they place a well expressed comment of Why they think That way and why its That important.. Leave it up.

        Saying, the ??? did it, isnt a comment.
        I dont have a job cause a ??? got it.. ISNT a comment nor an argument.
        Also, if we could get your great grandfather and grand father and Father to QUIT telling you that, it could help.

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Jun 2020 @ 1:34pm

      Nope

      Not in the slightest, the fact that one particular platform might be more popular does not mean that getting the boot is equivalent to being told 'you aren't allowed to post that anywhere', it simply means you aren't allowed to post on that one platform.

      That getting the boot from one platform might mean that less people are likely to see your speech when you post it on a smaller platform does not mean that you have been prohibited from posting at all, all you've been is banned from the one platform.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 23 Jun 2020 @ 1:46pm

        Reminder to no one in particular: No one has a right to use a third-party platform, even if that third party opens up the platform for speech from virtually everyone.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 23 Jun 2020 @ 1:44pm

      In a day and age of voluntary "follows" and internet corporation monopolies, "we don't do that here" really breaks down.

      No, it doesn’t. Twitter doesn’t have a monopoly on social media services; Facebook, Mastodon, and even that shitpit Gab prove as much. And when Twitter does the equivalent of “we don’t do that here” by warning/suspending accounts, it’s not saying “you can’t do that anywhere”. Donald Trump can go start his own social media service, or become exclusive to Facebook, if he doesn’t like Twitter adding speech to his tweets.

      “We don’t do that here” is Twitter saying “we have rules and you broke them”. Like the original Thagomizer article says, it’s an inert statement of fact. Any action that we can equate to Twitter saying that phrase doesn’t count as censorship.

      reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 23 Jun 2020 @ 1:45pm

      Re: I Dont Want You Saying That Anywhere

      Please name one "internet corporation" that has a monopoly.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 23 Jun 2020 @ 6:13pm

      Re: I Dont Want You Saying That Anywhere

      I remain curious what Koby thinks of Gab's ban on porn.

      Do you think it should lose protection for that?

      reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 23 Jun 2020 @ 2:26pm

    A quibble:

    I quibble with one thing you wrote in regards to something I wrote:

    Nintendo has the right to have its systems associated with specific speech. Any publisher that wants an association with Nintendo must play by Nintendo's rules. Enforcing a "right to publication" would be akin to the government compelling speech. We shouldn't want the law to compel Nintendo into allowing (or refusing!) the publication of Doom Eternal on the Switch. That way lies madness.

    This paragraph ignores that there were actual congressional hearings about violence in video games. Also, whether video games were protected speech was an open constitutional question until Brown v. E.M.A. which upheld that Video Games were indeed protected speech worthy of first amendment protection after decades of threats to legislate against them. So while you're right that Nintendo had the right to their own purview, the government could have stepped in at any moment should Nintendo of America have let something naughty past their watchful eyes. While the superior sales of the Sega Genesis version of Mortal Kombat was their impetus for letting Akklaim keep the blood in the sequel, I believe the threat of governmental regulation of their industry also led to the ESRB which made Nintendo's, um, editorial discretion moot.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 23 Jun 2020 @ 2:53pm

      Two things.

      1. “Could have” is one thing. “Actually trying to do it” is what got games their First Amendment protections.

      2. If the government had tried to stop Nintendo from allowing Mortal Kombat II to come out on the SNES (or stop stores from selling it), games may have gotten those protections much sooner via lawsuits from Nintendo, Acclaim, and various retailers.

      reply to this | link to this | view in chronology ]

    • identicon
      Châu, 27 Jun 2020 @ 4:12pm

      Re: A quibble:

      But user buy Switch or other game machine have right run any software they want like Linux, their own games they create, open source games, etc and no need use Nintendo''s store. Because Nintendo try control what software people use in Switch game machine Nintendo become censor and (I think) anti competition too.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jun 2020 @ 3:01pm

    You say that like it was an inalienable right...

    Nintendo can allow or deny any game a spot on the Switch library for any reason.

    It's a small point, but ... it isn't a right of theirs.

    Instead, it is the result of careful legal engineering. Patents, on cartridges, to prevent interoperable hardware. Trade Secrets, for the secret handshake between your media and the console (let's just call it that, alright?); with a DMCA chaser to that cocktail. Trademarks, Trade dress, copyright, to prevent you marketing it with their symbols on it.

    And, of course, the threat of a lawsuit, no matter how careful you've been.

    Rights under law, many of which we here at Techdirt rail against, but not a moral right.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Jun 2020 @ 6:08pm

    Are you Mike? You sound like Mike.

    It's a small point, and a small question, but when did you become a fanatical revolutionary? When did you lose all moral sense and common decency and then morph into the disgusting anal obsessed shithead Marxist that you are today? When did it happen, Stephen? (Are you actually Mike?)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jun 2020 @ 12:50pm

    You start by defining a clear objective distinction between (presumably good) "moderation" and (presumably bad) "censorship," then spend the rest of the article poking so many holes in that definition there isn't much of it left.

    A social media company telling a user "we don't do that here" under threat of being kicked out isn't censorship, but a school or a bank doing the exact same thing is? Why? Because giving every private entity a blank check to abuse their position of authority over people just because they're not government would be a disaster.

    But then the definition doesn't work anymore. It's no longer objective, but rather a subjective list of what counts as enough power to be abused. And not everyone would agree with you on your assertion that giant intenet platforms don't count.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 24 Jun 2020 @ 1:52pm

      You … spend … the article poking so many holes in that definition there isn't much of it left.

      I didn’t poke holes in it. Other people did that. Alls I did was continue the discussion — which, I might add, was the ideal I was hoping for out of both of my columns.

      A social media company telling a user "we don't do that here" under threat of being kicked out isn't censorship, but a school or a bank doing the exact same thing is? Why?

      In the Liberty U example, the school isn’t saying “we don’t do that here” — it’s saying “we don’t do that here, and if you try, we’ll make you wish you hadn’t”. As was said in the Thagomizer article, “we don’t do that here” is an inert statement of fact. Liberty U goes beyond that with threats, implicit or explicit, of expulsion and lawsuits. It’s trying to scare people into staying silent so long as they’re at Liberty U. Twitter is doing no such thing when it warns/suspends a user for violating the TOS.

      As for credit card companies and banks and such: If your financial well-being depends on you staying silent on issues or subjects that such institutions find…distasteful, I can’t see how that’s anything but censorship. PayPal nuking accounts over adult content isn’t some vague idea; ask Violet Blue about that sometime.

      the definition doesn't work anymore. It's no longer objective

      Where, dear Coward, did I say that anything in my columns other than statements of fact were objective statements of fact? Of course they’re opinions. The whole point is that I share my opinion, other people comment on it, I discuss the comments (either in the replies or in a column such as this one), and we all reach a better understanding of my opinion. If anyone agrees with me, great. If they disagree, great. If they disagree and can present a good argument for why, even better.

      I didn’t write these columns to present The One True Definition of any word, let alone three (censorship, discretion, and moderation). They represent an opinion — one that I hope is reasoned and logical — and a starting point for a discussion of the issues raised by that opinion. Feel free to dissent and say I’m full of shit, but let’s not act like I’m trying to rewrite the Oxford English Dictionary here.

      not everyone would agree with you on your assertion that giant intenet platforms don't count

      Someone being booted from Twitter for saying racist bullshit and someone being booted from a My Little Pony fan forum for saying “the original show was the best” are the exact same thing. The only real difference lies in how many people are on the service from which that person got booted.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 24 Jun 2020 @ 2:36pm

        Re:

        I think the point is that you started out saying it's only censorship if it's done with governmental power, and then gave two or three examples of things you would consider censorship despite not involving any government. So maybe you need to reexamine your definition of censorship.

        reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 24 Jun 2020 @ 2:07pm

      Re:

      A social media company telling a user "we don't do that here" under threat of being kicked out isn't censorship, but a school or a bank doing the exact same thing is? Why? Because giving every private entity a blank check to abuse their position of authority over people just because they're not government would be a disaster.

      I think you missed the context where when social media companies moderates it isn't censorship but when schools and banks do it, it can be considered to be "censorship". The context is that you most likely are in a financial dependent situation in regards to a school (tuition fees etc) and a bank. If you are moderated on social media and you don't like it you can always use another service a few clicks away, a situation that is very far removed from the financial consequences that can happen if your school or bank decides they don't like what you say or do.

      Also, I doubt that every private entity will abuse their position of power - because that's the only scenario that will satisfy your assertion that it will be a disaster.

      But then the definition doesn't work anymore. It's no longer objective, but rather a subjective list of what counts as enough power to be abused. And not everyone would agree with you on your assertion that giant intenet platforms don't count.

      You can always create your own soap-box which a lot of people actually do since they don't want to deal with the big social media platforms, which means you can't be censored from speaking - it's just that your audience shrinks and an audience isn't something the 1st amendment guarantees.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 24 Jun 2020 @ 2:10pm

        Schools can also threaten expulsion. Even for students at a “university” such as Liberty U, the chance of losing out on the benefits of a higher education after having spent an ungodly amount of money to receive it would most likely chill their speech.

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 24 Jun 2020 @ 3:32pm

          Re:

          Yeah, I thought that was implicit when I said "financial consequences" but perhaps it needed clarification.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 24 Jun 2020 @ 3:52pm

            In fairness, expulsion can (and does) lead to financial consequences, but it also has social consequences — e.g., “you wouldn’t want your family to think you’re a failure, now would you” types of threats, even if they’re only implicit.

            reply to this | link to this | view in chronology ]


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