Offensive Speech – Slinkard Law Offices

In last week’s post, defending Reddit’s decision to expand its content ban, I promised that I’d answer an objection to that expanded content-restriction policy.

The objection to that content policy comes from Gizmodo, in a post from Annalee Newitz entitled, Reddit Bans /r/Coontown For All the Wrong Reasons.

Ms. Newitz, sensibly, isn’t opposed to a ban, for subreddits like /r/Rapingwomen or /r/Coontown; she feels that the content-restriction policy that CEO Steve Huffman promulgated amounts to a “terrible set of policies.”

She contends that the new August restrictions were unnecessary, and that prior content restrictions would have allowed Reddit to ban like /r/Coontown because

Huffman could have banned /r/Coontown under the original set of rules, which state that Reddit can ban forums “that incite harm against others.” But because he wasn’t willing to admit that racism incites violence, he wound up inventing a crappy new rule — based on whether subreddits are “annoying” or “make Reddit worse” — that will actually do more harm than good.

Reddit made the right decision to ban /r/Coontown, but to base a policy against racist speech on the theory that it leads to violence is unnecessary, and puts a website in the business of contending for or against arguments of social science.

A broader definition of what’s unacceptable, without a tie to inciting violence, assures that a private publisher’s freedom of act – in defense of its brand name, customer goodwill, etc. – will not require a link between speech and possible reader conduct. Advising a private publisher-client to establish a content-restriction that requires a link between speech and violence would only limit a private publisher’s ability to act. Publishers are not social scientists, nor need they be.

There are, candidly, some derogatory terms that a private publisher – in this case, crucially, a private entity like Reddit – might mish to limit that do not have a link to violence.

That’s why Reddit’s latest content-restrictions, ones that allow a ban apart without a link to violence, are ones that I would have advised: they offer freedom of action to the publisher.

It’s true, of course, that CEO Huffman might ban too much, but the need to maintain readership will act as a brake on his restrictions.

In any event, none of this involves state action. If private publishers limit too much, there are sure to be others that will spring up as alternative havens. (That’s one reason state action is so different: one wouldn’t expect new governments to spring up in response to state censorship.)

A publisher-client’s best interests are served through flexible policies that afford discretion in implementation.

That’s precisely what Reddit’s new content restrictions allow.

On July 16th, Reddit announced a ban on some offensive content, and a policy of concealing other content to prevent easy access of display to readers. This two-tiered approach to offensive content was novel, and a response to conflicting demands for an open forum and for a site free of racist posts, for example.

A few kinds of content, including child pornography or other patently illegal activities, were banned:

Spam
Anything illegal (i.e. things that are actually illegal, such as copyrighted material. Discussing illegal activities, such as drug use, is not illegal)
Publication of someone’s private and confidential information
Anything that incites harm or violence against an individual or group of people (it’s ok to say “I don’t like this group of people.” It’s not ok to say, “I’m going to kill this group of people.”)
Anything that harasses, bullies, or abuses an individual or group of people (these behaviors intimidate others into silence)[2]
Sexually suggestive content featuring minors

A second category wasn’t banned, but instead restricted:

Adult content must be flagged as NSFW (Not Safe For Work). Users must opt into seeing NSFW communities. This includes pornography, which is difficult to define, but you know it when you see it.
Similar to NSFW, another type of content that is difficult to define, but you know it when you see it, is the content that violates a common sense of decency. This classification will require a login, must be opted into, will not appear in search results or public listings, and will generate no revenue for Reddit.

A subreddit that was to be concealed was the astonishingly crude, inveterately racist subreddit /r/Coontown, to offer a sense of how offensive some of this content was.

How long would Reddit be able to keep some of these subreddits (even if concealed) in the name of free expression (although, of course, not on inapplicable First Amendment grounds)?

Not long: CEO Steve Huffman expanded the ban on August 5th. It’s impossible to see how Huffman could have done otherwise than ban /r/Coontown and subreddits of similar ilk, and expect Reddit to be a welcome destination for readers or corporations.

However well-intentioned Reddit’s July 16th desire to balance speech and decency, Reddit was never going to be able to balance the two without looking like (a less candid version of) Stormfront. Reddit a large concern needing and expecting a wide readership; concealing vile content was never going to satisfy expectations against racist trolls, etc.

I cannot think of a circumstance under which I would have advised Reddit to keep but conceal subreddits like /r/Coontown. A client is owed more than a mere assessment of what may be done; they’re owed a practical assessment as well as a black-letter one.

Steve Huffman made the right decision to discard these subreddits entirely.

Next: Answering an Objection to the Language of Reddit’s Expanded Ban.