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Comment by iandanforth | Hacker News Reader

I don't respect this. I acknowledge that as it is their playground they can make this kind of judgement call, however I have always believed that freedom of speech also protects the freedom to hate and be a terrible person. There are countless texts, movies, and other 'creative works' which both condone and encourage violence against women, mass murder, torture, and other things I find abhorrent, but I don't get to ban any of them, and that is a good thing.

If your mission is focused on art I would encourage the kickstarter group to go back and re-read the history of banned works of art, and pay attention to which groups were pushing for those bans. I suspect you won't like the company you now keep.

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Freedom of Speech goes out the window when you start dealing with private enterprise. Kickstarter doesn't have the power to "ban" anything more than you or I. They're just addressing the kind of content they don't want to be promoting, which is totally within their rights.

It's pretty hilarious when libertarians and believers in unfettered free enterprise cry foul against corporations and businesses for having content standards.

Are you of the opinion that all libertarians think this way? None of the ones I know would fail to understand this.

I'm only referring to the specific ones who would be against Kickstarter's decision by arguments that it "violates free speech." Not all minarchists.

There don't seem to be any direct competitors to kickstarter, so when kickstarter chooses to ban something from their site, they ban it from getting kickstarted. Just because they don't use violence doesn't mean they don't have power, or that their power doesn't come with responsibility.

There are lots of competitors to kickstarter, such as http://www.indiegogo.com/. Hell, the idea of a kickstarter isn't exactly difficult to replicate: we've seen many, many sites (App.Net and Soylent among them) 'roll their own'.

Google "kickstarter competitors" "8 Kickstarter Alternatives" http://mashable.com/2012/12/06/kickstarter-alternatives/

Are you saying there is a market failure for crowd-funding? (<irony>Maybe we need some government intervention?</irony> Or that because Kickstarter is an amazing service that has conquered a niche, it has the moral obligation to incorporate the Bill of Rights into their ToS?

> Freedom of Speech goes out the window when you start dealing with private enterprise.

Why? And before you answer, take a quick survey of all the means you used to communicate today. How many of them were provided by 'private enterprise?' And how much of your day was spent on property owned by 'private enterprise?'

Not that we're going to resolve this debate in a thread :) but please consider the implications of this assumption. Also note I'm not advocating for a say anything you want whenever, wherever world.

Two things: One. Freedom of speech is a first amendment right to protect you from censorship by the government and the government only. Anyone, anywhere running their own service is fully within their rights to boot you off.

Two. A sleazy pickup artist book isn't anywhere remotely near any previous works of banned art. I would consider something as awful the film Cannibal Holocaust to be fine art before I used that term for some idiotic kickstarted pick up artist book.

Freedom of speech as defined in US law and freedom of speech as liberty we value are not necessarily the same. While it's not illegal to boot someone from a private service for expressing opinions you disagree with it, it still may be wrong.

Not sure I agree with the parent poster, but I think he/she is well aware of the distinction you're drawing, and says so up front. Certainly, legal freedom-of-speech protections don't require Kickstarter to host any particular content. But Kickstarter can still espouse freedom of speech as a value they try to uphold in their practices, even if they're under no legal obligation to do so. I think as more and more of our online interactions move to hosted platforms, we have to decide as a society whether or not we want the hosts of those platforms to police our speech. Those spaces can either be free-speech spaces or safe spaces, but probably not both, and there's a legitimate discussion about societal norms to be had about where we want that balance to fall, independent of this particular rather-icky example (and let's face it: most examples that bring this discussion to light are probably going to be icky).

How far do you take this? Kickstarter is a business and needs to make money.

Should it be acceptable for people to Kickstart escort businesses, "legal high" websites, or Amway pyramid schemes? All of those things are legal but are seen by the public as being slimy and taboo. Why would Kickstarter want to associate with these people?

Right, I'm not saying the all-free-speech route is the right answer for Kickstarter; in fact, in my personal opinion, it probably isn't. I'm just saying it's a reasonable question to ask, reasonable people can disagree about the answer, and the whole discussion is orthogonal to whether or not the first amendment obligates them to do anything in particular (since it doesn't).

>I would consider something as awful the film Cannibal Holocaust to be fine art before I used that term for some idiotic kickstarted pick up artist book.

Calling Godwin's Law here. Nazis were proud of burning books that were not art.

A couple of points:

1) The project creator has freedom of speech to a point. For one, he cannot yell "Fire" in a crowded theater unless there actually is a fire. He also cannot advocate or call for illegal activity by others (such as "Go and mug that guy walking down the street"). This is where the line of protected speech gets blurred. Reading some excerpts from his works it's clear that he advocates for aggressive physical/sexual contact with or without permission, to the point of making the woman struggle to rebuff advances. Basically this is borderline sexual assault depending on how good of a lawyer you have.

2) Whether or not it is within the project creator's right to publish this as free speech, Kickstarter has their own interests in mind. By facilitating funding for this project, they may open themselves to legal liability if someone going by the guidelines set in the book does end up sexually assaulting someone.

To address what I see as the core of your comment, I agree that an old fashion book burning / banning is not the answer. Just understand that this work dances the line between protected and unprotected speech, and Kickstarter does not want to play a part in that. Also understand that there is a significant difference between Kickstarter not allowing a certain project (or class of projects), and the government declaring a topic to be unpublishable.

IANAL, so everything I'm saying comes from one vague semester of business law.

1) I think you may be incorrect about the advocating of illegal acts thing, but neither am I a lawyer so lets agree on "they could get sued out of existence." Totally valid.

2)A larger point is that the public/private divide is a false dichotomy. We have our lives and we want to be able to express ourselves. So my point is that the difference between the government and kickstarter banning something is one of degree but not in kind. It is a restriction on expression within a space. Granted, a much smaller space.

You may be correct on 1), but take a look at http://en.wikipedia.org/wiki/Brandenburg_v._Ohio There are a few tests that have to be met. The key piece is "The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action."

On point 2), I still think there is a clear difference in kind between government and private entity bans. The government can enforce their bans with legal threat of violence (i.e. You can go to prison). Another point of distinction is that within private spaces there may be implicit endorsement by the private space owner. For instance you have the public right to promote a political candidate, but if you do it by planting a sign on my lawn, it is implied that I endorse that candidate. I may not want to make that endorsement and restrict you from posting your sign, but that is not nearly the same as the government saying "No one may publish endorsements for Communist Party members".

> For one, he cannot yell "Fire" in a crowded theater unless there actually is a fire.

This meme really needs to die. The "fire in a crowded theater" standard hasn't been relevant for half a century [1].

> He also cannot advocate or call for illegal activity by others (such as "Go and mug that guy walking down the street").

This sounds like the "imminent lawless action" standard [2]. IANAL, but it seems that the "imminent" part of the standard applies to someone telling his pal to "go and mug that guy", not to someone who writes terrible advice for seducing women. Even if those that follow that advice are guilty of sexual assault, it is doubtful this author is placing women in imminent danger of sexual assault.

> Whether or not it is within the project creator's right to publish this as free speech, Kickstarter has their own interests in mind. By facilitating funding for this project, they may open themselves to legal liability if someone going by the guidelines set in the book does end up sexually assaulting someone.

Again, IANAL, but I doubt that Kickstarter faces real legal liability here. This seems like standard first amendment territory. I am not aware of any constitutional law that forbids running a campaign to fund a book, no matter how bad the advice in that book is. If you can cite relevant statutes or caselaw, or can state a potential civil cause of action, I'm willing to be proven wrong.

> Just understand that this work dances the line between protected and unprotected speech, and Kickstarter does not want to play a part in that.

It seems firmly on the right side of that line, no matter how distasteful it is.

IMO, it is far more likely that Kickstarter doesn't want to be branded in the public eye as a safe haven for molestation advocates, which I can understand.

1. http://www.popehat.com/2012/09/19/three-generations-of-a-hac... 2. http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

Regarding "fire in a crowded theater", I don't see how it's any less relevant that it was in the past, regardless of the context it was first used in. The concept is that I say something false in order to cause a panic and through the panic cause harm. (Admittedly I only skimmed the article linked. If I missed where the article specifically addresses this, I apologize.)

Regarding the second point, the "imminent lawless action", this is where having a good lawyer would come in to play. It's a matter of definitions and arguing for a definition to side your way.

Kickstarter might not be breaking any constitutional laws, but that doesn't prevent them from being sued or even having a judgement declared against them. Again, this goes to the use of a good lawyer to make arguments for defining the role Kickstarter played. Are they an active participant, or just a neutral 3rd party (like perhaps a bank where a criminal stored stolen money).

I'm not saying that this is the only reason, or even the main reason that Kickstarter wants to prohibit something like this. I'm only saying that I believe legal liability is a legitimate concern in this case.

> Regarding "fire in a crowded theater", I don't see how it's any less relevant that it was in the past, regardless of the context it was first used in. The concept is that I say something false in order to cause a panic and through the panic cause harm. (Admittedly I only skimmed the article linked. If I missed where the article specifically addresses this, I apologize.)

The "falsely shouting fire in a crowded theater" quote comes from the supreme court decision in Schenk v. US, which is all but defunct today.

> Regarding the second point, the "imminent lawless action", this is where having a good lawyer would come in to play. It's a matter of definitions and arguing for a definition to side your way.

I don't believe the "imminent" part of that phrase leaves much open for interpretation.

> Kickstarter might not be breaking any constitutional laws, but that doesn't prevent them from being sued

Of course not. But as my father (who is a lawyer) is fond of saying, anyone can sue anyone else at any time. That doesn't mean they are likely to succeed.

> I'm only saying that I believe legal liability is a legitimate concern in this case.

I'll concede that legal liability might be an issue in this case, though that's for lawyers to decide. The point of my original comment was primarily to debunk an outdated legal standard. I got sidetracked with what I will now admit is poor additional legal analysis.

I will now admit my initial analysis was poor because after doing a tad more research, I stumbled into a far more pertinent case. That case is Rice v. Paladin Enterprises [1]. Back in 1983, Paladin Enterprises published a limited-run hitman manual [2]. A decade later, a convicted hitman noted that he had picked up tips from this book; this led a circuit court to hold that book was unprotected speech. This paved the way for civil sanctions against Paladin Enterprises. The Supreme Court declined to hear the case, and Paladin's insurance company settled for an undisclosed sum.

Drawing parallels to the current issue is left as an exercise for the reader.

1. http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html 2. http://en.wikipedia.org/wiki/Hit_Man:_A_Technical_Manual_for...

To further explain the "fire" point above: What isn't obvious is that, while obviously immoral, the fire example is actually not a good way to test if something should be free speech protected.

Quoting from the article: "The "shouting fire" standard seems to require that the to-be-censored speech be (1) false, (2) said under circumstances in which there is no opportunity for reasoned reflection or debate, and (3) the cause of actual harm by those who hear it."

The problem is people who dislike free speech can argue that yelling "false" things shouldn't be protected. This is leads to selective enforcement.

The more narrowed definition was added in Brandenburg v Ohio tto something is protected under free speech unless it has a likelihood of inciting "Imminent lawless action".

I see no denial of the author's freedom of speech here. The author is free to host and fund their misogynist drivel on their own server, and Kickstarter doesn't seem to be denying that. Kickstarter has a business to run, and has some semblance of ethics, so it has chosen to refuse to offer its service to this content.

I see exactly where you're coming from but KickStarter isn't the only outlet, there are plenty of others available.

It's murky water to tread anytime you start excluding groups but you also have to preserve the community that you build and do what you believe to be correct for it. The owners and admins of KickStarter are stewards of that community and have a duty to it. If, after very careful consideration, it is deemed that this material would hurt this particular group then it's fine by me if they stopped it. The creatives will go elsewhere because there are other places (this is key).

Random House doesn't get into the business of publishing books on many different subjects but plenty of other publishers do.

I think you're conflating the right to promote something abhorrent with permission to promote something abhorrent in my space. There are many examples of rights which can be exercised to perpetrate moral wrongs. Kickstarter isn't capable of impeding that. They are, however, well within _their_ rights to revoke access to _their_ mechanism.

Kickstater is, ultimately, a business, and they've decided they will make more money by doing a little of their own policing. If what's best for art isn't what's best for Kickstarter, expect them to do what's best for Kickstarter. If someone can compete with them by doing what's best for art instead, more power to them.

They are refusing to organize payment to these things. They aren't 'banning' them in the sense you're talking about. I find your comparison offensive. You're twisting the meaning of the word 'ban'.

They're not banning anything. They're banning it from their platform. They don't get to say "You can't publish that", but they do get to say "You can't publish that in collaboration with us". There is nothing stopping the author of this work to raise funds via alternate means, which is much as it has always been. I imagine most all controversial works have had problems getting published, but I don't think people cry out "censorship" whenever a publisher rejects a work on vaguely moral grounds.

"Freedom of speech" is a limit on the government, not on private companies.

As usually codified in law. There is plenty of room for people to believe that rights to speech should enjoy greater protections (I don't mean to defend that position, I mean to acknowledge it).

Kickstarter is a business and has no obligation to uphold free speech. They need to curate their projects to protect their reputation. What if they allowed filmakers to Kickstart porn movies? You could call it free speech and make no judgments about the act itself, but at the end of the day people would start to see Kickstarter as a slimy business that's willing to host any project as long as they get a cut of it.

Somewhat related: There's another site called http://offbeatr.com/ which is like Kickstarter, except it is exclusively for porn, sex toys, erotic art/literature/games, and other such adult projects. I don't know if they are perceived as "slimy" or not, but there are a lot of interesting, innovative projects on offbeatr.

Kickstarter is simply selecting with whom they choose to enter into a contractual agreement. So long as they do so in a way which is not illegally discriminatory, they are within their right.

Likewise, the potential counterparties to an agreement with Kickstarter are free to choose not to enter into a contract with Kickstarter.

I've been tweeting jeers to @DoSomething (the group that garnered the petition) and kudos to Perry Chen and Kickstarter for not having ceded to censorship.

To be fair, the book is ugly. The passages quoted are disgusting. I would never buy this book, nor endorse that anyone else buy this book. If asked, I would state that I think the book is disgusting and that you probably should not buy it.

What is even more disgusting to me is the very popular idea that its manufacture should have been censored. While we may each be able to judge for ourselves that this book does or does not (for me, it does not) have any artistic value, none of us is capable of making that decision for the others, and certainly not for everybody else.

I'm somewhat saddened to see Kickstarter's apology for this reason, and I am disgusted that the project was canned altogether. But worse than all of that, I am deeply, deeply troubled that so many young people were so eager to jump on the censorship bandwagon.

You have kind of a funny idea of censorship. Kickstarter can't stop the book from being made, and authors are certainly not owed assistance by Kickstarter or anyone else to get their work published. It's actually never been easier to get books published and there's certainly no actual censorship happening here. The only role Kickstarter plays is aggregating funds. The author is not limited from pursuing that goal through other means.

You're absolutely right. It was within Kickstarter's rights to defund the work, or to disallow the project, or to impose whatever burdens their whimsy could think up. Nor are they the government, from which the first amendment is intended to protect us.

The author, meanwhile, is of course free to publish the book in whatever other means he chooses.

That doesn't make it any more right in my book, and sets up a dangerous precedent that Kickstarter will now subject themselves to the whims of whichever populist group can be the most vocal.

It contradicts their brand identity to some extent. But they're a corporation like any other, so if their financial ends are served by subjecting themselves to populist whims, that's just life. One could try to compete with them on that angle. Indiegogo, for instance, seems to attract people who find Kickstarter restrictive (also Europeans).

They're a business. If a larger amount of their customer base doesn't want it, then they would presumably respond accordingly. Microsoft did it for the XBox One, after all.

I don't disagree with that either. But, for me, and I can't say whether I'm in the majority or the minority, nor do I care, but I will now literally never use Kickstarter for anything lest my project be deemed to avant garde by the populace at large.

I do sincerely hope, not for Kickstarter, but for us, that this doesn't discourage truly innovative art projects from being crowdfunded, as I think that sets art back, contrary to Kickstarter's stated goals.

In short, they've made it all too easy for me to believe that a book series like Harry Potter could be shut down by the religious right, or that Huck Finn would never have been Kickstartable, nor Nine Inch Nails' "Pretty Hate Machine", etc.

I think for your disaster scenario to be taken seriously there would need to be major cultural works--peers of Harry Potter, Huck Finn, and NIN--that were products of the Kickstarter process. Using examples that predate crowdfunding to discuss the negative repercussions of not having crowdfunding is a little ridiculous. The avenues that produced HP, HF and NIN still exist.

The point was clearly hypothetical. I wasn't looking for a statement with 'impact', so much as a way to illustrate that there are works of art that can also be considered controversial.

There are clearly books, movies and songs being funded by Kickstarter. I want the media I consume to challenge my beliefs, and to challenge my ways of thinking.

And again, I don't dispute that this was perfectly within KickStarter's right to act the way they did, and while yeah, I don't like it, who am I? Nobody. That doesn't mean that it doesn't bother me, and that doesn't mean that it isn't somewhat ominous, at least in my opinion.

You're confusing censorship with boycotting. I don't care if his book gets published...just by nobody I do business with.

I really don't think I am. The actions of the petitioners (or at least the threats thereof, whether or not they were made) could have been seen as boycotting, at some point, in the future, but the actions of Kickstarter terminating an already funded project and refunding the donated moneys is a notion far closer to censorship than to boycotting.

Kickstarter isn't censoring anybody. They don't have a military to enforce the censorship. They didn't refund the money. They made a donation to RAINN instead. The POS still gets to publish his book and the backers still get their copy.

There is no censorship in saying, you don't get to use my platform for that.

From Wikipedia: "Censorship is the suppression of speech or other public communication which may be considered objectionable, harmful, sensitive, or inconvenient as determined by a government, media outlet, or other controlling body."

Kickstarter exercising their control to restrict the publication of this material meets the clinical definition of censorship, even though they aren't the government. Again, I'm not saying that it wasn't within their rights to do so; it was, but being within their right doesn't make it something else.

You are right, however. I misread the statement that the project was defunded as that the moneys had been returned. The statement that they make though, at least to me, indicates that they would have defunded the project if they hadn't missed the window.

If that was their intent, I am no less saddened by it. If their actual intent was to miss the window on purpose, and then issue this apology, I am no less saddened by it.

I would argue that with MANY other publishing platforms available to the public, Kickstarter is NOT a "controlling body". Regardless, I believe wholeheartedly that censorship by the government is utterly and completely wrong, I don't believe that in this particular circumstance, it's appropriate to cry "censorship".

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