Foul Language and Censorship: Who decides what can be said online?

Two weeks ago, the Court of Appeals for the 2nd Circuit ruled that the Federal Communications Commission (FCC) policy regarding unplanned outbursts of profanity in live television broadcasts could not withstand constitutional muster.  I realize this story is a bit old, but a recent story on NPR, raised an interesting point about who gets to determine when a word stops being obscene.  Aside from the FCC, there really isn’t an official body that makes formal decisions about which words are and aren’t allowed.  It got me thinking about the language policies of many virtual worlds and how many of them are just as arbitrary as the FCC’s rule used to be.  The only difference is that there won’t likely be any court challenges to those policies any time soon.  But the question still remains, who really gets to decide what words people are allowed to say?

First, a summary of the 2nd Circuit ruling, in case you missed it:  You probably heard all about the exorbitant penalties imposed by the FCC under the Bush administration for the use of “fleeting expletives” during live broadcasts.  These penalties were increased in the wake of such moments of national shame as Janet Jackson’s wardrobe malfunction.  The court of appeals panel found that the FCC’s rules were unconstitutionally vague because the criteria for what could not be said went beyond the traditional list of banned words made famous by George Carlin and there was no way to know what was acceptable and what was not.  The chilling effect on speech was too great so the rule had to go.

Our society loves making things taboo and then relishes in defying the mores we claim to uphold.  Consider Ms. Jackson’s nipple flash, which lasted for maybe a second or two at most, but was subsequently replayed by “news” outfits ad inifinitum, completely without irony, ensuring that everyone was exposed to the supposedly offensive act.  Only a society as deeply conflicted as ours would become so hysterical over something so harmless.  Nevertheless, the chilling effect of the penalties was palpable: ever more-boring Superbowl halftime shows, multi-minute delays on live broadcasts of award shows, the list goes on.  The ruling at least removes the prospect of seemingly random penalties from broadcast companies because the FCC now has to be more specific about what is and is not allowed.

That specificity is something that many game world Terms of Service/Use policies still lack.  While trying to make the environment safe and welcoming for all users, while still encouraging people to chat openly, game companies walk a tight line.  Take, for example, the most popular virtual world, Habbo.  The company filters offensive words by changing them to “bobba” (e.g. Go bobba yourself).  Players can turn the filter off now, which is all well and good, but the game still doesn’t say what it considers offensive.  Free speech arguments aside (which will be covered in a later post) the dilemma for players is the same as for broadcasters, you don’t know what’s offensive until you say it and get “bobba’d” or you self-censor.  Swear too much and you may get muted, kicked from a room, or banned for a period of time or even permanently.  The game rules aren’t very specific up front, but you can at least ask why you were banned once it has happened.

The NPR story discussed a recent on-air use of “cojones,” a generally taboo word spoken by former Alaska governor Sarah Palin during a cable news interview.  The Spanish word for testicles world not ordinarily escape the censor’s bleep; a banned word isn’t magically ok if it is spoken in a different language.  But if people still want to convey the offensive message, they usually find a way around filters.  Thus an interesting response to language bans is all of the different euphemisms for body parts or functions that have been created to escape censoring.  I’m not a fan of censorship, but in a way, censorship inspires creativity.  And the last thing we need in this society is less creativity.

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About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Contracts and Agreements, Legislation, Rights and Civil Liberties, Virtual Worlds and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink.

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