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.)

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.

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Moderation v. Discretion v. Censorship: They're Not The Same

from the some-'splaining dept

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.

Regular Techdirt commenters have seen that paragraph show up often in recent months. But what does it really mean? Well, as the person who crafted that bit (and who uses it on a regular basis), I'mma do you an explain.

Moderation

Moderation is a platform operator saying "we don't do that here". When I use that phrase, I may cite a column from a blog called Thagomizer. (That column helped me start crafting my bit in the first place.) In the column, writer Aja Hammerly refers to it as a "magic" phrase:

["We don't do that here"] is a conversation ender. If you are the newcomer and someone who has been around a long time says "we don't do that here", it is hard to argue. This sentence doesn't push my morality on anyone. If they want to do whatever it is elsewhere, I'm not telling them not to. I'm just cluing them into the local culture and values. If I deliver this sentence well it carries no more emotional weight than saying, "in Japan, people drive on the left." "We don't do that here" should be a statement of fact and nothing more. It clearly and concisely sets a boundary, and also makes it easy to disengage with any possible rebuttals.

All moderation decisions on an interactive Web service boil down to "we don't do that here". When Twitter punishes a user over a tweet that breaks the rules, the admins have all but said that phrase. Twitter doesn't care if you do "that" elsewhere. But it doesn't want you doing "that" on Twitter.

What makes this different from censorship? Moderation lacks the force of law. Twitter can ban a user for breaking the rules, of course. But it can't stop that user from posting their speech elsewhere. Someone banned from Twitter for saying racial slurs can go to 4chan and still post those slurs. Moderation is a social consequence: A moderator thought someone was acting like an ignorant jerk, and they showed that jerk the door.

Discretion

Discretion is you saying "I won't do that there". Some people might think of discretion as self-censorship. But that phrasing focuses on the negative idea of chilled speech. I prefer to think of discretion as an act of personal restraint.

As an example, consider the hypothetical case of Joe Straightdude. Joe doesn't believe he hates gay people (though he doesn't "agree with" homosexuality). One night, he sees a pro-LGBT post on a Facebook group that rubs him the wrong way. He writes an angry reply to the post that includes a well-known anti-LGBT slur. But before Joe posts it, he stops himself. He thinks about whether his reply needs that slur. Then he thinks through the possible fallout of posting the whole reply. After a few minutes of thinking, he deletes what he typed without posting it.

What makes discretion different from censorship? In the example above, Joe wouldn't have faced any legal fallout for his reply if he had posted it. And no one forced him to not post the reply. He made his choice based on whether he wanted to face negative social consequences. Joe took responsibility for his actions and showed restraint all on his own.

Censorship

Censorship is someone saying "you can't do that anywhere" before or after threats of either violence or government intervention. Lawsuits. Arrests. Fines. Jail time. Threats involving any of those four. Any one of those things suck more than an industrial-strength vacuum cleaner. When they're attached to speech, they become the tools of censors.

I could come up with hypothetical examples of censorship, sure. But why do that when so many real examples exist?

• the existence of laws that criminalize blasphemy
• Shiva Ayyadurai's attempt to sue Techdirt over the assertion that he didn't invent modern email
• the DMCA notice sent to Twitter by a gun rights activist to take down a video of her
• the Chinese government's attempts to memory-hole the Tiananmen Square Massacre
• Hungarian police arresting a man for posts critical of the Hungarian government
• American Media Inc. using legal threats to stop Australian booksellers from carrying Catch and Kill by Ronan Farrow

What sets censorship apart from moderation and discretion? Simply put, censorship has the rule of law behind it. Twitter can't stop banned users from using the speech that got them banned on another service. But a court that rules to suppress speech puts the weight of the law behind that ruling. It says, "Publish that speech anywhere and we'll fine you or toss you in jail." The same goes for police officers who punish people for legal speech that offends others. And people who threaten lawsuits and arrests qualify as wannabe censors at "best". Such actions can, and often do, result in chilled speech.

And chilled speech, unlike discretion, carries an air of legal consequences. The lawsuits filed by Devin Nunes to identify Twitter user @DevinCow have one real purpose ("unmask that user"). That user feels emboldened to mock Nunes because they remain anonymous. But if Nunes succeeds in his goal, that user would have less reason to keep posting. Nunes would take the choice of discretion out of that user's hands. ("I don't want him to sue me again, so why risk it?") To put it another way: Discretion is when you show restraint; censorship is when the government restrains you.

Censorship can also happen without any actual legal threats. American movie studios will often censor their own films to appease foreign governments, even if those governments don't threaten legal action. But countries like China can make or break the profitability of a film. The threat is thus implicit: "Censor your movies or they won't play here." Studios have a financial incentive, then, to censor their films and "play nice".

Moderation As "Censorship"

Some people refer to moderation decisions that affect them as "censorship" because they feel they've been censored. Maybe they think a platform punished them for holding certain political views. Maybe they think a platform punished them for bigoted reasons. Whatever the reason, those people feel that losing their spot on the platform is censorship. But they're not angry about losing their right to speak. (Twitter, Facebook, etc. can't take that away from them, anyway.)

A platform the size of Twitter or Facebook comes with a built-in potential audience of millions. Anyone banned from Twitter loses the ability to reach that audience. For some people, such a loss can feel like censorship — even though it isn't. No one has the right to an audience. No one has the right to make someone listen. But entitled people think they do have those rights, and any "violation" of those "rights" is "censorship".

On the other hand, marginalized creators who lose that platform may be dealt a huge blow to the reach of their content. And if they feel like they were punished in some way for bullshit reasons, their feeling "censored" holds far more validity. Just ask LGBTQ YouTubers whose videos were demonetized because the videos contained pro-LGBTQ content.

In the strictest of legal senses, what Facebook, Twitter, YouTube, etc. do when they moderate speech on their platforms isn't censorship. But when it comes to morals and ethics…well, everyone has an opinion.

The Last Word...That Isn't

And in fairness, most of what you read above is an opinion — my own, and nobody else's. I don't consider what I've said to be the "last word" on the matter. If anything, those three sentences only summarize my opinions on these issues. They don't get into the morality or ethics of moderation, such as Blizzard's decision to punish Blitzchung for his support for Hong Kong. They don't say "people can't use 'censorship' in a colloquial sense" (although I do think that cheapens the concept). And besides all that, opinions should be discussed, debated, and even changed.

Think of this, then, as an opening for that debate. Use this as a springboard to form your own opinions, and share them in the comments. Agree with me? Great. Disagree with me? Even better — because through disagreement and reasoned discussion, we can improve and refine our opinions.

But don't get mad if one of your comments gets flagged. That isn't censorship — it's moderation, working as intended.

[To the extent possible under law, I waive all copyright and related or neighboring rights to this article.]

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