That Penny Arcade Controversy

[Alzrius]

And 9 times out of 10, when people are talking censorship in the broadest sense, they are talking about someone curtailing their right to free expression.

I disagree; I think that nine times out of ten, when someone is talking about censorship, they're discussing the ethical implications of supressing someone else's freedom of expression.

But when it happens without government force behind it- say, of a reporter by a media outlet- they are probably in a situation where they are disagreeing about an editorial decision. That body has the legal right to curtail the speech in accord with its function and its position as an employer of persons who produce journalistic input. And the reporter can go elsewhere.

Again, this is a focus on the legal ability of one entity's ability to control another person's free expression; it looks at whether or not someone has the authority to do something, ignoring the question of whether or not it's right to do it.

It also presumes that the censored individual can "go elsewhere," which is oftentimes not the case (e.g. threat of civil action, non-competition clauses, etc).

And "other controlling bodies" usually involves an arm of the state- FCC, school, prison...

Your supposition that this "usually" - that is, the majority of the time - involves an arm of the state is, at best, unsupported. As it stands, there are plenty of examples to the contrary.

In 2007, Rockstar Games attempted to publish their video game Manhunt 2. The Entertainment Software Rating Board (a private organization) gave the game an Adults Only (AO) rating. Because Nintendo, Sony, and Microsoft all had policies that they wouldn't publish AO games on their consoles - as well as Wal-Mart having a policy against selling AO-rated games - this effectively meant that the game was censored in America, as Rockstar was not in a position to sell the game themselves for PC-only consumption, either physically through the mail or over the internet. (The game was released after the more controversial elements had been bowdlerized and the game was given a Mature rating.)

In 2010, when WikiLeaks published the Collateral Murder video and the American diplomatic cables, Mastercard and Visa, along with PayPal and Amazon, severed all ties to Wikileaks, severely hindering the non-profit organization's ability to raise money. This despite no criminal charges having been filed against WikiLeaks for their activity (though, to be fair, the U.S. government did urge several of these organizations to stop working with them). Collaboration among the large private financial enterprises was therefore used to try and censor an organization.

The power of private enterprises to censor individuals and organizations - particularly by acting in concert - is a very real threat to people's ability to (meaningfully) exercise their right to free expression.

 

[Morrus]

And 9 times out of 10, when people are talking censorship in the broadest sense, they are talking about someone curtailing their right to free expression.

Yes, possibly.

But when it happens without government force behind it- say, of a reporter by a media outlet- they are probably in a situation where they are disagreeing about an editorial decision. That body has the legal right to curtail the speech in accord with its function

But the "legal right" doesn't come into it. Censorship can be legal, it can be illegal, it can be performed by a state, a company, an individual, or by oneself (self-censorship). "Illegal" is not a requirement of censorship, and neither is "performed by government".

What you're referring to as censorship, I think, is "illegal state censorship". Which is, indeed, illegal and performed by a government.

 

[Cadence]

In 2007, Rockstar Games attempted to publish their video game Manhunt 2. The Entertainment Software Rating Board (a private organization) gave the game an Adults Only (AO) rating. Because Nintendo, Sony, and Microsoft all had policies that they wouldn't publish games on their consoles - as well as Wal-Mart having a policy against selling AO-rated games - this effectively meant that the game was censored in America, as Rockstar was not in a position to sell the game themselves for PC-only consumption, either physically through the mail or over the internet. (The game was released after the more controversial elements had been bowdlerized and the game was given a Mature rating.)

The power of private enterprises to censor individuals and organizations - particularly by acting in concert - is a very real threat to people's ability to (meaningfully) exercise their right to free, creative expression.

Just to clarify, so you feel the "right to meaningful creative expression" includes the right to force others to let you use their intellectual property, to not work in concert with other private organizations, and to have no say over the products they wish to distribute?

 

[Alzrius]

Just to clarify, so you feel the "right to meaningful creative expression" includes the right to force others to let you use their intellectual property, to not work in concert with other private organizations, and to have no say over the products they wish to distribute?

As a note, I've removed the coloring from your post; I use the classic background, so black text is harder for me to see.

That said, it's ironic that you said "just to clarify," and then completely misrepresented my post and put words in my mouth. No, I don't think that freedom of expression necessarily entails having the right to force others to let you use their stuff - questions of "force" are another focus on legal ability, rather than on ethics.

To reiterate, I think that issues of censorship need to focus on ethics as much as on the law, and that we need to recognize that private enterprises, particularly when acting in concert, have a great deal of power to censor freedom of expression.

 

[Umbran]

What you're referring to as censorship, I think, is "illegal state censorship". Which is, indeed, illegal and performed by a government.

Well, yes. But so are most folks when they discuss this. The usual argument is, "You're infringing on my freedom of speech!"

When folks in the US refer to "freedom of speech", they are (implicitly or explicitly, knowingly or not) referring to the First Amendment of the US Constitution, in which "freedom of speech" is effectively defined. The First Amendment *ONLY* concerns state censorship. A non-governmental entity may censor you, but that it not a 1st Amendment, "freedom of speech" issue. You, Morrus, and we mods regularly censor speech, but we are not guilty of infringing on freedom of speech.

 

[Dannyalcatraz]

I disagree; I think that nine times out of ten, when someone is talking about censorship, they're discussing the ethical implications of supressing someone else's freedom of expression.

Now THAT is some fine parsing!

Honestly, I think the legal and ethical considerations are pretty closely intertwined- almost inextricably so.

Again, this is a focus on the legal ability of one entity's ability to control another person's free expression; it looks at whether or not someone has the authority to do something, ignoring the question of whether or not it's right to do it.

It also presumes that the censored individual can "go elsewhere," which is oftentimes not the case (e.g. threat of civil action, non-competition clauses, etc).

In those cases, the person has freely entered a legally binding contract- that means there can be no "censorship" because the party whose speech is limited has freely agreed not to talk and has been financially compensated not to do so.

As an attorney, my right to free speech is curtailed by client privacy issues. It isn't censorship. I can still talk about my clients most personal information...but I WILL be disbarred and lose my primary livelihood. Even though I could seek a new license in another state, no other state bar would give a license to someone who intentionally violated a fundamental rule of the position.

In 2007, Rockstar Games attempted to publish their video game Manhunt 2. The Entertainment Software Rating Board (a private organization) gave the game an Adults Only (AO) rating. Because Nintendo, Sony, and Microsoft all had policies that they wouldn't publish AO games on their consoles - as well as Wal-Mart having a policy against selling AO-rated games - this effectively meant that the game was censored in America, as Rockstar was not in a position to sell the game themselves for PC-only consumption, either physically through the mail or over the internet. (The game was released after the more controversial elements had been bowdlerized and the game was given a Mature rating.)

That is not censorship. That's the same as the MPAA rating system for movies. The MPAA has no power to stop you from putting out a movie. You can even release one unrated. But if you do, venues for your movie will be hard to find.

Rockstar wanted to produce a game with certain content, it got an AO rating. The big consoles wouldn't publish AO games, but they were free to invest their own money and self-publish. They were also free to find private backers- I guarantee you that someone like Larry Flynt (himself a staunch defender of free speech and a named respondent in many a 1st Amendment case)- would have been happy to invest in it.

And Wal-Mart is under no obligation to sell AO material. In fact, its consistent with their general policies: they don't sell X-rated videos, for instance. Rockstar could have sold their game in other outlets besides Wal-Mart- even directly to the public via the Internet had they planned ahead.

In 2010, when WikiLeaks published the Collateral Murder video and the American diplomatic cables, Mastercard and Visa, along with PayPal and Amazon, severed all ties to Wikileaks, severely hindering the non-profit organization's ability to raise money. This despite no criminal charges having been filed against WikiLeaks for their activity (though, to be fair, the U.S. government did urge several of these organizations to stop working with them). Collaboration among the large private financial enterprises was therefore used to try and censor an organization.

Again, choosing not to do business with a person or entity with whom you have a disagreement is not censorship. Neither is limiting your ability to raise funds- that's just business.

The power of private enterprises to censor individuals and organizations - particularly by acting in concert - is a very real threat to people's ability to (meaningfully) exercise their right to free expression.

I respectively disagree.

I'm not saying that what youre asserting is impossible, but rather, I see it as 1) less likely and also 2) respect that private organizations- individually or acting in concert- are just as entitled to exrcising free speech and the power of the purse as any individual.

 

[Morrus]

Well, yes. But so are most folks when they discuss this. The usual argument is, "You're infringing on my freedom of speech!"

When folks in the US refer to "freedom of speech", they are (implicitly or explicitly, knowingly or not) referring to the First Amendment of the US Constitution. The First Amendment *ONLY* concerns state censorship. A non-governmental entity may censor you, but that it not a 1st Amendment, "freedom of speech" issue. You, Morrus, and we mods regularly censor speech, but we are not guilty of infringing on freedom of speech.

I'm not talking about the laws of your country, though. I'm talking about the meaning of the word "censorship" (in response to Danny's claim that non-legal definitions were not valid).

 

[Alzrius]

Now THAT is some fine parsing!

Honestly, I think the legal and ethical considerations are pretty closely intertwined- almost inextricably so.

I strongly disagree; legality and ethical considerations are very much apart from each other.

If someone within your immediate proximity is seriously injured/dying due to a set of circumstances that you were uninvolved with, and you have the ability to save/aid them with no risk of (substantial) harm to yourself or others, I believe that you're ethically obligated to do so. Legally, however, you have no such obligation, and may turn around and leave them to their fate.

Likewise, you can be held legally liable for crimes (usually minor crimes) that I feel have no moral dimension. You can be fined for jaywalking, but I believe that crossing against the line has no immorality to it unto itself.

Ethics and the law are, at best, a Venn diagram, rather than being near-synonyms.

In those cases, the person has freely entered a legally binding contract- that means there can be no "censorship" because the party whose speech is limited has freely agreed not to talk and has been financially compensated not to do so.

Again, this is your focus on the legality of such a contract. That doesn't unto itself show that it's ethical to require that someone who works for you will give up their right to perform their livelihood for someone else.

Likewise, it doesn't speak at all to using the threat of litigation to intimidate someone into silence.

That is not censorship. That's the same as the MPAA rating system for movies. The MPAA has no power to stop you from putting out a movie. You can even release one unrated. But if you do, venues for your movie will be hard to find.

Rockstar wanted to produce a game with certain content, it got an AO rating. The big consoles wouldn't publish AO games, but they were free to invest their own money and self-publish. They were also free to find private backers- I guarantee you that someone like Larry Flynt (himself a staunch defender of free speech and a named respondent in many a 1st Amendment case)- would have been happy to invest in it.

It is censorship. Stop focusing on the question of "are they allowed to do this?" and ask "is it (ethically/morally) right for them to do this?" instead. Having the theoretical ability to find another venue for expressing yourself is purely a question of theory, not of practical reality. Yes, someone who is shut out of every major avenue of a given venue can attempt to create a new venue, but this creates a near-insurmountable burden for most individuals and organizations.

And Wal-Mart is under no obligation to sell AO material. In fact, its consistent with their general policies: they don't sell X-rated videos, for instance. Rockstar could have sold their game in other outlets besides Wal-Mart- even directly to the public via the Internet had they planned ahead.

See above.

Again, choosing not to do business with a person or entity with whom you have a disagreement is not censorship. Neither is limiting your ability to raise funds- that's just business.

It is censorship when you're attempting to stop someone else from promoting an expression that you disagree with. That's as true for a corporation as it is for another person (since apparently corporations are people too).

I respectively disagree.

I'm not saying that what youre asserting is impossible, but rather, I see it as 1) less likely and also 2) respect that private organizations- individually or acting in concert- are just as entitled to exrcising free speech and the power of the purse as any individual.

Then we'll have to agree to disagree. I see it as 1) more likely, and 2) attempting to stifle the expressions of otherswith whom you disagree by denying them access to major venues of expression is not your own expression of free speech, as well as 2a) the power of the purse, e.g. money, is not speech.

EDIT: This is shaping up to be a great debate, but unfortunately I'm going to have to step away from it until Monday. I'm posting from work, and my home computer has died - until the new one I ordered arrives, I'm offline during the weekends. Hopefully this thread will still be here when I get back.

 

[Dannyalcatraz]

I strongly disagree; legality and ethical considerations are very much apart from each other.

If someone within your immediate proximity is seriously injured/dying due to a set of circumstances that you were uninvolved with, and you have the ability to save/aid them with no risk of (substantial) harm to yourself or others, I believe that you're ethically obligated to do so. Legally, however, you have no such obligation, and may turn around and leave them to their fate.

That's not a distinction between ethics & legality, that's a distinction between morality and ethics or legality.

http://www.diffen.com/difference/Ethics_vs_Morals

Ethics and the law are, at best, a Venn diagram, rather than being near-synonyms.

In general, yes, but in this issue, their overlap is so significant so as to be nearly congruent.

Again, this is your focus on the legality of such a contract. That doesn't unto itself show that it's ethical to require that someone who works for you will give up their right to perform their livelihood for someone else.

Likewise, it doesn't speak at all to using the threat of litigation to intimidate someone into silence.

This is an agreement that was freely entered into, eyes wide open.  If you didn't want to abide by the agreement- with all of its potential ramifications- then you should not have entered into the agreement.

The potential for litigation is based in the contract that you signed. If you don't want to abide by this, don't sign the contract.

It is censorship. Stop focusing on the question of "are they allowed to do this?" and ask "is it (ethically/morally) right for them to do this?" instead. Having the theoretical ability to find another venue for expressing yourself is purely a question of theory, not of practical reality. Yes, someone who is shut out of every major avenue of a given venue can attempt to create a new venue, but this creates a near-insurmountable burden for most individuals and organizations.

Absolutely nobody has a "right" to sell a commercial product in someone else's store.

The rules were in place: X, Y, and Z would not publish a product that didn't meet their standards, and retailer W wouldn't sell it. That's the free market. You don't like their rules, you find another outlet or produce a different product.

It is censorship when you're attempting to stop someone else from promoting an expression that you disagree with. That's as true for a corporation as it is for another person (since apparently corporations are people too).

No, that's just a disagreement in which you are exercising your free speech and economic power.

Then we'll have to agree to disagree. I see it as 1) more likely, and 2) attempting to stifle the expressions of otherswith whom you disagree by denying them access to major venues of expression is not your own expression of free speech, as well as 2a) the power of the purse, e.g. money, is not speech.

An individual or group of private citizens are free to say that they won't do business with a person or organization, and organizations may do likewise. There may be repercussions, of course.

 

[Dannyalcatraz]

Double post