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General Guide To Blogging, #128:
In a moderated comment thread, there is a 50% chance that a commenter who had an uncivil comment deleted will accuse the moderator of censorship and question the moderator's commitment to free speech. (Because if the First Amendment means anything, it's the right to do what you want with someone else's private property without the property owner being able to clean up your mess.)
MRosh:
comment removed by moderator. Let's keep this civil
2.11.2009 8:36pm
jim47:
[Comment fake-deleted on grounds of being an overly referential joke]


2.11.2009 8:38pm
OrinKerr:
I should add, in case anyone isn't getting the joke, that Mrosh above and a lot of commenters in the earlier thread are writing comments that pretend to have been edited/deleted. I haven't actually edited any of them.
2.11.2009 8:38pm
tvk:
I think of it as a bad habit to conflate "commitment to free speech" with "First Amendment" rights. Private universities are not subject to the First Amendment. I sure hope they are not expelling students and firing professors for holding controversial views.
2.11.2009 8:40pm
OrinKerr:
tvk,

Yes, and I think of it as a bad habit to conflate "comittment to free speech" with "academic freedom."
2.11.2009 8:45pm
OrinKerr:
I should add, tvk, that a lot of commenters specifically invoke the First Amendment. But it's not 50%, and it would have been too awkward to try to estimate the precise breakdown of the commenters that alleged First Amendment issues, free speech generally, First Amendment free speech, general principles of viewpoint discrimination, etc. So I just went with "free speech."
2.11.2009 8:49pm
R King (mail):
ATTICA! ATTICA! ATTICA!
2.11.2009 8:56pm
Jonathan F.:
Yes, and I think of it as a bad habit to conflate "comittment to free speech" with "academic freedom."
Yes, but certainly not all instances of universities disciplining students and professors for their speech have anything to do with academic freedom. When students are brought before the dean for holding an "affirmative action bake sale," or when a custodian is almost fired for racial harassment because he was reading a book on his break about combatting the Ku Klux Klan, academic freedom isn't involved in any particularly meaningful sense.
2.11.2009 9:02pm
OrinKerr:
Jonathan F,

What is your definition of academic freedom?
2.11.2009 9:06pm
Fub:
I came to this thread after I sensed a great disturbance in the farce, as if millions of voices cried out in terror and were suddenly silenced.

Thank goodness seven posts survived.
2.11.2009 9:19pm
Jonathan F.:
Jonathan F,

What is your definition of academic freedom?

I'm not going to attempt a hard and fast definition, but maybe a variation on the first sentence of the Wikipedia entry: "Academic freedom is the belief that the freedom of inquiry by students and faculty members is essential to the mission of the academy."

Academic freedom isn't something that happens when you set foot on a university campus. The distinguishing factor, in my view, is that it pertains in some way to academic inquiry or study. Reading a book for pleasure on your lunch break isn't an academic activity, so punishing it doesn't particularly implicate academic freedom. (If the punishment chilled, say, assigning similar books in class, then you would have an indirect impact on academic freedom.) The affirmative action bake sale is maybe a closer case, especially if it is a protest of race preferences at the university and not just in general. Still, though, the fact that it is carried on by students at a university does not ipso facto make it academic.

So a university could, for instance, without contradiction ban "offensive" racial speech on campus except for speech uttered in the academic setting. You couldn't put a sign on your dorm room door saying "Blacks are inferior," but you could argue, in class or in a paper, that The Bell Curve is sound science and that we're all better off therefor.

To be clear, I think all these speech bans are bad policy, and that it would be impractical to try to tailor a policy to ban undesirable non-academic speech without chilling the same ideas in the academic sense.
2.11.2009 10:55pm
lucia (mail) (www):
Jonathan F.
Reading a book for pleasure on your lunch break isn't an academic activity, so punishing it doesn't particularly implicate academic freedom

What if the student's motive in reading a history book was to learn something about historical events rather than pleasure? Would the reading be academic then? Of what if he was reading the history book in a library rather than on his lunch break?

Does the pursuit only become academic if a faculty member assigned the reading?
2.11.2009 11:18pm
Jonathan F.:
What if the student's motive in reading a history book was to learn something about historical events rather than pleasure? Would the reading be academic then? Of what if he was reading the history book in a library rather than on his lunch break?
In this case, the subject was a custodian, whose learning has nothing to do with the academic mission of the university. Certainly you can find closer cases, and I'm not sure which way I would go on the two you posed. Likewise, I think one can come up with cases that are even more clearly not about academic freedom: a professor who puts a sign on her office door saying "Jews are worthless."
2.11.2009 11:32pm
Sagar:
"Reading a book for pleasure on your lunch break isn't an academic activity, so punishing it doesn't particularly implicate academic freedom"

so now you are determining why someone is reading a book - whether for pleasure or to learn or for some other reason?
2.11.2009 11:53pm
Sagar:
if you are including academic freedom, free speech, 1st amendment - surely more than 50% will make the argument. so this is a safe bet!
2.11.2009 11:56pm
Jonathan F.:
so now you are determining why someone is reading a book - whether for pleasure or to learn or for some other reason?
Well sure -- why not? (Note, of course, that I never said it would generally be an easy task.)

Suppose, for example, that one university rule says, "No person shall utter racially offensive language on campus," and another says, "All other rules herein notwithstanding, academic freedom shall be inviolable." If someone gets hauled in to the admin office on a charge of saying "Mexicans are filthy and practically subhuman," why shouldn't we be determining whether he was doing it (a) to so offend his Mexican roommate that he would move off campus, or (b) to argue in a PoliSci paper that the U.S. should have a stricter immigration policy?
2.12.2009 12:14am
Kazinski:
Jonathan F.,
You need to educate yourself on the particulars of the case that you brought up. The subject of the harassment request was not only a custodian at the University, he was also a student. So when he was on his own time at the university, I'd say he was more the student than the employee. Especially when you consider that it is more typical than unusual for students to be employed in some fashion by colleges and universities, especially for graduate students.
2.12.2009 1:03am
Jonathan F.:
Kazinski,

You're right; I stand corrected on that point. (I suppose I disagree, though, that when he was on a break at work he reverted to being "more the student than the employee," but that point isn't especially important.) Good catch.
2.12.2009 1:12am
Michael Alexander:
Why do you guys mind what happens in the comment thread? I imagine you have a reason, maybe liability, wanting to have a respectable blog, etc? But, I don't think anybody really ascribes juvenille posts in the comments to the blog. On the other hand, I have no clue if something in the comments gives rise to liability. Why not just say - if the comments offend you, don't read them.
2.12.2009 1:15am
OrinKerr:
Michael,

I think the question isn't why we care what happens in the comment thread: The question is why we have them in the first place. We have them in the first place because we think thoughtful commentary from our readers can advance an interesting discussion of the issues we raise in the posts. For that reason, some of us (myself included) regularly contribute to comment threads, trying to engage in a sustained conversation that is interesting and advances our understanding of the issues.

It's pretty much impossible to achieve that goal that with unmoderated threads.
2.12.2009 1:59am
Visitor Again:
I would think those who invite readers to comment on their blog pieces are subject to legitimate criticism if they violate the core free speech principle by censoring comments on the basis of viewpoint.
2.12.2009 3:02am
courtwatcher:
Visitor Again,
What is the "core free speech principle" you're referring to, and where does it come from (as applied to private bloggers' removal of comments on their blog posts)?
2.12.2009 3:09am
David Warner:
And what are the other 50%, chopped liver? <- joke

BTW, I find it breathtaking that we actually have someone here defending the harassment of that janitor. Check the book he was actually reading. It was worse than a chilling environment, it was a silly environment.
2.12.2009 6:44am
SeaDrive:

(Because if the First Amendment means anything, it's the right to do what you want with someone else's private property without the property owner being able to clean up your mess.)


I am reminded of a situation where the question was not someone else's property, but someone else's occasion.

Some folks from my city were entertained at the White House for some reason that I don't remember. At a point when the President was making an entrance or exit, some reporters (including some big name TV network reporters) yelled questions at him. The questions were about current affairs, and were not related to the occasion. My fellow citizens were outraged that their dignified time with the President was sullied by this intrusion, and yelled at the reporters to shut up. The reporters yelled back "Freedom of the Press."
2.12.2009 9:21am
TokyoTom (mail):
Orin, do you see any difference in behavior between those who have registered as posters and those who are commenting as guests?
2.12.2009 9:37am
Tritium (mail):
People have the right to speak their minds, however, they do not have a right to be disrespectful to those they are around. The purpose for a freedom of speech is to ensure government doesn't arrest someone for publicly announcing his/her grievances.

Liberty should not be restricted, nor should a person cause harm with rumors or lies in order to discredit a persons character. Government is supposed to guarantee Justice, therefore a disrespectful comment being deleted is Justice at its best. (And Inexpensively carried out.)
2.12.2009 10:03am
pete (mail) (www):

My fellow citizens were outraged that their dignified time with the President was sullied by this intrusion, and yelled at the reporters to shut up. The reporters yelled back "Freedom of the Press."


When I was an undergraduate our university would host fairly major speakers and let the general public come in to watch in seats not taken up by students/faculty. One of the conditions of attending the event is that you were not allowed to use any recording devices. Once (I think George H.W. Bush was the speaker) some guy not in any way affiliated with the univeristy had his video camera out before the speech started. He refused to put it away and was yelling "freedom of the press" right before security escorted him out.
2.12.2009 10:10am
DanG:
I don't think that commentors who complain about your commitment to free speech actually believe that you are violating some constitutional or other legal rule when you delete their comments. I think that what they are getting at is that the same values that underlie the First Amendment (the "marketplace of ideas," etc.) should caution a moderator against deleting comments.
2.12.2009 10:26am
resh (mail):
Employing the rule of reciprocity, there's a 50% chance that the moderator will underscore their act of censorship by citing some inapplicable free speech canard. Viz, it was rude, crude, disruptive, offensive-pretty much what one would hear during, well, legitimate free speech arguments.
2.12.2009 10:52am
Tritium (mail):
Freedom of Speech isn't violated by deleting a Comment. That's like a person claiming 1st amendment rights to spray paint on the side of a court building.

Liberty says he has the right to spray paint his message on the side of the court building. Justice says, that right is recognized, now put it back the way you found it.

Liberty doesn't mean there are no consequences for the result of those actions.
2.12.2009 11:26am
Tony Tutins (mail):

if they violate the core free speech principle by censoring comments on the basis of viewpoint.

Skipping over the entire government vs private forum issue:
I've never seen viewpoint discrimination on the Volokh blog. I have noticed other blogs delete, or screen before posting, any contradictory views.
2.12.2009 11:41am
C. Gittings (mail) (www):
Well that goes for bloggers too Tritium: censorship is censorship, and civility is a two-way street.
2.12.2009 11:48am
lucia (mail) (www):
Jonathan
In this case, the subject was a custodian,

As was previously noted, I was correct when I called him a student. He was a custodian and a student. You seem to believe that on break from the job he is more of a custodian than student. We could debate that all day.

But let us suppose the student/custodian was only a custodian. Can't custodians be motivated to learn? Isn't educating oneself an academic pursuit? If a university really believed in academic freedom, is there a good reason to not extend the right to educate oneself about historical events to custodians?

So, even if he were 100% custodian, I don't see how it could be good policy for a university to suggest that custodians should be blocked from their self-assigned academic pursuits on breaks.

But now let us say by "more a custodian" you are thinking he's 99.9% custodian and only 1% student when on break from job. Why would a university claiming to cherish academic freedom wish to impede the academic pursuits of someone who is 1% a student? Many students squeeze study into work breaks; universities generally encourage this behavior.

Now, if you wish to argue that Sampson's motive in reading the history book was not education, ok. But you aren't going to find that as easy a task as the example of screaming epithets that you provided. Screaming epithets is rarely considered an academic pursuit. Reading history books is generally recognized as an academic pursuit.
2.12.2009 12:02pm
Michael Alexander:
Orin,

I see your point. I enjoy reading the development of the discussions, and often learn quite a bit. I suppose the main problem is the amount of rubbish you have to wade through to get to the useful comments. Ignoring it doesn't work when you are trying to follow something useful.

My least favorite part of being a lawyer is how so many people want to argue everything, then want to argue about whether their argument is proper. Among the benefits of a courtroom is that there are procedural rules and a good judge can control the discussion.
2.12.2009 2:28pm
Splunge:
I feel like I've stumbled on a time-warp blog, here, with Professor Kerr rediscovering all the empirical sociological laws of the newsgroup era. Can I assume when he rediscovers Godwin's Law someone will make a comment deploying an argument ad hitlerum and the disco ball will go dark?

On the substantive issue, I find this clause, "with someone else's private property," a bit simplistic, or at least not very forward-looking. Where, exactly, is this "conversation" taking place? In what sense is it "on" Professor Kerr's "private" property? Arguing it's all about who owns the magnetic storage media on which (for now) the words are stored seems a shaky foundation for a robust understanding of the rights involved here.

For one thing, there's the fact that the intervening network plays a larger functional role in the conversation. Without it, no one would hear Professor Kerr, and no one else would hear what his commenters said. But neither Kerr nor his commenters paid for that network. There are substantial public investments, at least, and as the Internet becomes more critical to our lives -- there are fewer backup communications options -- there are substantial public interests, all of which is what leads people to make arguments about net neutrality blah blah.

For another, it seems likely, going forward, that more and more communications will be extremely hard to physically locate in this way. Consider Pirate Bay; where are the shared files located, if you get a few thousand bytes from here, a few thousand bytes from there, and instructions from PB itself on how to reassemble the whole file?

Suppose, arguendo, that new technology makes it possible for blog comments to reside on the commenter's computer, making it possible for commenters to post larger comments, edit them, display images or movies without uploading copies (and losing control of copyrighted material, or burdening the network or Kerr's storage) -- and Kerr just deploys some code at the main VC blog that, like the assembly instructions on Pirate Bay, allows a reader's browser to "assemble" the complete post with comments from bits and pieces drawn from many computers, including Kerr's of course, but also his commenters'. Now who "owns" the debate space? Is it OK for Kerr to modify his re-assembly code so that it excludes Splunge's nasty comments? What if Splunge deploys code on his computer that lets other commenters override Kerr's code and see Splunge's dark ranting? Does he have to ask Kerr's permission, if the modified reassembly still includes Kerr's brilliant prose?

I don't doubt there are answers to these questions. But I question a curt (not to say aristocratic) dismissal of the vague feelings by people that there's some "First Amendment" issue involved, some element of public discourse which plays by different rules than dinner-table conversation behind closed doors. I think the public is sensing the issues technology is bringing, and wrestling with how to respond. That is, the instincts of the unwashed public may be in advance of the philosophizing of the intellectuals. Not a precisely new phenomenon, of course, as the existence of Dred Scott v. Sandford or the Compromise of 1850 might illustrate.
2.12.2009 5:50pm
lucia (mail) (www):
Splung--
If such a system existed, I would want Kerry to be given the option having my browser note Orin's deletions and skip those comments. If he chose to block comments from anyone who had not set their browser to ignore comments he marked as deletions, I'd be all for that.

Presumably, your hypothetical new internet structure could accommodate this sort of communication between the super-blogger and the blog visitor's browser. It would be necessary to permit blog visitors to easily skip comments from the more trolliish visitors.
2.12.2009 6:12pm
Xanthippas (mail) (www):

But, I don't think anybody really ascribes juvenille posts in the comments to the blog. On the other hand, I have no clue if something in the comments gives rise to liability. Why not just say - if the comments offend you, don't read them.


I do ascribe juvenile comments to a blog. That's why I don't read several blogs where the comments are full of misogynistic, racist or anti-semitic ramblings. Also, a well run comment section can be quite informative, and an excellent forum for argument and debate. It seems silly to sacrifice that in favor of some vague and unprincipled ideal of "freedom of speech" that permits dimwits to post completely unsubstantive comments on a blog.
2.12.2009 9:43pm
OrinKerr:
Splunge,

You have so many questions, and your thinking is obviously so much more sophisticated than anyone else here, that I think there is only one answer: For the good of the Internet you should open your own blog and dedicate as much time as you can to moderating comments. Good luck!
2.12.2009 10:06pm
Larry Fafarman (mail) (www):
The comment section is often the most important part of blog posts. The comment sections correct factual errors, present different views, and point out errors in reasoning in the original articles. These functions are especially important in law blogs because law blogs are frequently authoritatively cited by law journal articles and are even sometimes authoritatively cited by court opinions.

Banning commenters is always arbitrary censorship. Comments should at least always be considered on a case-by-case basis.

Scholarly journals, the courts, and other authorities should have rules against the citation of blogs that practice arbitrary censorship.

I allow incivility on my blog because discussions often become heated and it is hard to decide where to draw the line. However, I have the following rules about incivility:

(1) Insults, ad homimen attacks, etc. must be accompanied by legitimate arguments.

(2) No insults that are based on race, color, sex, national origin, religion, etc..

I also have some other simple rules, e.g.,

(1) No gossip about my private affairs.

(2) No lying about objective facts.

I've never seen viewpoint discrimination on the Volokh blog.

Well, you weren't there when David Bernstein censored one of my comments about the Israeli-Palestinian conflict.
2.13.2009 5:21am
lucia (mail) (www):
Larry F--
i disagree that banning is always arbitrary censorship.

There are visitors who repeatedly post insults, drop Nazi references, insult other visitors. If asked to not call people morons, they agree to comply, the switch to cretins. When told they can't call people cretins, they complain that you hadn't specifically said they can't call people cretins and agree to comply with the 'new' decree.

They then switch to calling people idiots.

These insults may not be based on race, color, sex or national origin, but the constant insults and childish testing of limits means these people are utter nuisances.

I don't consider banning people like this arbitrary. These people are banned based on behavior.

That said, I prefer alternative to totally banning people.

So, I ginned up a WP plugin. The first version was a failure. (It worked but used too much CPU.)

The second version lets me enter parameters to permit WP to recognize these visitors.

If they enter a comment, WP automatically moderates these specific people based on their name, email or url they typically drop examining both the entry fields in the comment and the values held in a cookie. Should they visit with a new IP, it records their new IP addresses when those change. Should they ever leave useful comments, I can let those through. Should they advance to a whole new level of obnoxiousness, I would could use the bannage plugin to block them from even reading the blog.

My troll moderation plugin also looks at the names of the past 5 commentors; if anyone other than an author posts more than 4 out of the past comment at the blog, their comments are moderated. (The purpose of comments at my blog is not to permit someone to visit and talk to himself.)

I need to perfect this plugin to define three levels of troll, do some auto-assigning for certain types of obnoxious behavior and also include an automated sunset feature to remove names form the troll list over time. I figure after a month of non-troll activity, people may learn to behave (or not). If they chose "or not",

I do not consider banning based on behavior arbitrary.
2.13.2009 11:14am
Larry Fafarman (mail) (www):
lucia said,
These insults may not be based on race, color, sex or national origin, but the constant insults and childish testing of limits means these people are utter nuisances.

I don't consider banning people like this arbitrary. These people are banned based on behavior.

It takes just an instant to reject an unacceptable comment. I found that with comment moderation activated on my blog, the trolls mostly stop submitting unacceptable comments because they know that I won't post those comments.

I have been banned many times solely on the basis of viewpoint, e.g.,

Fatheaded Ed Brayton banned me permanently from his Dispatches from the Culture Wars blog because he disagreed with my literal interpretation of a federal court rule. He did not even give me a single opportunity to answer his disagreement. I asserted that when a plaintiff rejects an out-of-court settlement offer that equals or exceeds the maximum relief that could possibly be granted by the court, the judge may dismiss the suit on the grounds of "failure to state a claim upon which relief can be granted," Rule 12(b)(6) of the Federal Rules of Civil Procedure. That is pretty obvious. Duh.

I was banned from Uncommon Descent for complaining that the blog posts had too much campaigning for Obama.

I was banned from commenting about co-evolution on the Florida Citizens for Science blog.

Ironically, it is usually the most persuasive dissenting comments that are censored -- unpersuasive dissenting comments are usually allowed to stay to show the supposed weakness of the opposition.

Should they visit with a new IP, it records their new IP addresses when those change

Banning IP addresses is unreliable. Some Internet users connect to the Internet by a different IP address each time they log on. Different Internet users often share the same IP address -- when you ban an IP address, you may be banning people you don't want to ban.
2.13.2009 11:56pm
lucia (mail) (www):
Larry Fafman--
What you say about the time to delete an individual comment is true. But you are ignoring the actual time sink: Monitoring and evaluating each comment individually becomes difficult and time consuming when a post attracts 100 comments in a single day.

This hasn't been frequent at my blog -- but it has happened. It's very frequent at VC, so I imagine the load for Orin is many times heavier than for me.

What makes things worse is the more obnoxious trolls like to figure out when the blogger sleeps and set off troll eruptions at midnight. I can't moderate during the 8 hours I am sleeping, when I am showering, exercising, cooking, working, doing laundry etc. So, I prefer to use a plugin to assist.

I know banning by IP is unreliable.

But fewer blog visitors than you might imagine share IP addresses. Sure, I risk moderating people who share IP addresses-- but I can always fish those few comments out of moderation. General, I catch those comments quickly.

If, in future, my plugin ever accidentally moderates a non-troll, I can always modify my pluign to whitelist certain people name/email/IP combinations.

As for the fact that visitors IPs change, I programmed my plugin to read the name and email in the cookie field and in the name/email field. If their IP changed, it adds that IP to the list.

In any case, the plugin simply moderates those visitors who I have identified as consistently acting like trolls. I can read the comment, and, should it be substantive, approve it. People who have never behaved as trolls at my blog are automatically approved (unless the spam software gets them. But that's a different issue.)

So, yes I will moderating those who consistently call people idiots, morons, brown-shirts, cretins, share too many details about their sexual desires, post in all caps, and/or post some many comments so quickly they drown out conversation.

Sorry to hear you are being banned so often. I realize some blogs moderate for view points. I tend to think that sort of moderation is inadvisable. That said: those aren't my blogs. I also don't know the particulars. As I am not a lawyer, I have no idea whether your interpretation of Rule 12(b)(6) of the Federal Rules of Civil Procedure is 'pretty obvious. Duh'. As for your campaigning for Obama at Uncommon Descent: Were you on topic?

I think it's acceptable for a blogger to insist comments remain on topic. (That said, I permit quite a bit of OT chatter.)

I only make rules at my blog. The fact that others may ban you for reasons you consider arbitrary isn't going to persuade me to not ban trolls who behave obnoxiously. If you were to visit my blog and act like a troll, I'd program your parameters into my plugin. That simple.
2.14.2009 4:05pm

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