wilderthan | Musing: Strikethrough/Boldout

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Musing: Strikethrough/Boldout - My thoughts on...

Since I'm thinking that this page will be linked by people, I'll just specify first that I am also known as

shanaqui and

edenbound, and I've formerly mostly been involved under

shanaqui's username. But it's all one. Also, this post isn't a comprehensive round up of information, and nor does it claim to be unbiased.

This post is related to the recent events surrounding

ponderosa121 and

elaboration, and their suspensions. They were both suspended for posting Harry Potter fanart of an explicit nature. There's debate over whether the fanart was intended to portray underage characters, but I haven't heard anyone say that the characters were clearly, say, ten years old. There's room for doubt.

ponderosa121 was certainly well known, and so this has stirred up the fandom community like you wouldn't believe. People have responded by declaring their intentions to leave LJ, with communities such as

fandom_flies, and demanding statements from LJ about what is going on.

First of all, let me specify that I don't believe this is an issue concerning the First Amendment. A company such as Six Apart can, legally, choose what to host on their servers, and what not to host. It is, however, for many people, about freedom of speech and freedom of artistic expression.

Why are people getting so bothered about it?

A large amount of the reaction, I believe, is due to what we refer to as "Strikethrough 07", in which many users and communities, regardless of their content, were suspended because of interests they had listed. The implication was that all these journals were devoted to encouraging and promoting paedophilia, and therefore had to be removed. In a move to pacify those protesting, the CEO of Six Apart came forward and promised that they would be reviewing the journals and returning all of them which were fiction related. This was, in fact, done.

However, since then there has been a lack of communication about the issue. Clarifications issued only posed more questions, and those questions went unanswered. The Terms of Service we're all held by have not been changed. And then came the two recent suspensions, sparking fears that Six Apart's apparent tolerance for fandom was simply feigned to persuade those in fandom to buy permanent accounts.

The suspension of

elaboration proves that a permanent account is no defence against having your content deleted without warning or chance for recourse.

In addition, both of the users were suspended over slash fanart, which is to say, depictions of homosexual relationships. There is speculation that this demonstrates homophobia on the Abuse Team's part.

LiveJournal, apparently, decided that the fanarts that caused the suspensions had no artistic merit. The test applied was, according to their clarifications, the Miller test, in which something is judged by the standards of the community. It is quite plain that many members of the community whose standards they should be using do not believe that at least one of the pieces of art in question had no artistic merit -- and many of them believe that there were no underage characters in it, either.

The anger, frustration, confusion and fear has not been in the slightest bit abated by the lack of response from LiveJournal. Well. Apart from that one thread where Abe Hassan (

burr86) had time to mock us, instead of helping us.

People fear that all the LiveJournal/Six Apart management cares about is money. That fear is fuelled by the timing of all this -- Strikethrough, reassurances, permanent account sale, Boldout. People have found that of the places the donations from permanent accounts went to, most of them lead to charities somewhat connected to Six Apart, which was not disclosed: this could be a coincidence, but it's a worrying one. It's not helped by the fact that Six Apart has introduced ads to the site, including "sponsored moodthemes", which even those who shelled out $150 have to see. It's not that we don't want them to make money -- it's that we don't want them to make money while trampling all over their customers.

Why is it a freedom of speech issue?

The issue here is not defending child pornography, or paedophiles, because that's not what is apparently being banned. What is involved here is fiction. There are no real children involved. I'm not a US citizen, so I'm not very up on the laws, so I would ask you to look at the comment thread involving

pretentioustfu to see a more detailed explanation, here.

On the other hand,

synecdochic posts: "In the eyes of the United States government, "child pornography" is defined as -- elisions and boldface mine -- "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that [...] depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex [...] It is not a required element of any offense under this section that the minor depicted actually exist."".

Who are these people?

Concerned users of LiveJournal. They are no one thing. They are people who are unhappy at what has happened and that is all there is to it. They do not all like chan, they do not all like

ponderosa121 or

elaboration, they're not even all from fandom. They are just people who want to be heard.

What do these people want from LiveJournal, then?

I've seen people asking for many things. Among them:

-Clear guidelines as to what can and cannot be posted
-An apology for suspending people before such clear guidelines are produced
-An apology for making us wait for an answer
-An apology from Abe Hassan
-For Abe Hassan to lose or give up his job
-For the two artists to be unsuspended

Note: I do not necessarily want all these things. This is just a summary of what I've seen people asking for.

What are these people doing?

Some are making and posting on communities such as

fandom_flies. Others are posting entries like this one. Some are trying to get the news sites interested in it. There are angry phone calls to the Six Apart offices, faxes, emails, support requests... Some people are spamming on

news and

lj_biz. Some people have cancelled their paid accounts payments and reverted their plus accounts to basic. Others are trying to contact the advertisers. Personally, I'm with the commenters over at

news, which is what prompts the next header. I'm not reverting this account back to basic, at this stage, because I like having lots of icons and I don't believe it will do any good.

What good do the people spamming on

news think they're doing?

We're protesting. I know that some of it does fandom no credit in people's eyes: cat macros, song lyrics, youtube videos, macros involving the banned picture... But at least we're not sitting on our arses ignoring the thing we care about. The content there might not be good, but it's a visible protest. A large, visible, and easy to organise protest. For sheer volume there is nothing to beat it. And there are intelligent comments there. Truly. I know every now and then I stop to reiterate why I'm doing it and what we want. I do think that if every single person there makes sure to do something else as well -- write an open letter, write an email to Six Apart management, etc -- then what we're doing will be much more effective.

Why the hell won't we just leave already?

Some people have done so. Some people are in the process of doing so, over at

fandom_flies. Some of us don't want to leave, because we love the service. Some of us have poured so much energy into this site that it hurts to try to tear ourselves away: our fanworks, our meta, our communities, our friends, our entries -- entries which contain our hopes, our dreams, our loves, our fears, our desires... We've made friends here. I know I've made friends right there in the spamfest. There are strong ties binding us to this site and we want to stay. We want the management to hear us and say "yes, we recognise the concerns of our customers". This isn't a question of free speech as far as the First Amendment goes. But it is an issue of how a company will treat its customers.

Editlog:
-Added a section on freedom of speech.
-Corrected the comments on "charities linked to Six Apart".
-Tweaked a bit so that I'm not speaking for the whole of fandom.
-Clarified the issue with money.
-Added a link to

synecdochic's post.

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I'm linking this from my LJ :)

Thank you for being coherent, when I can't even get calm enough to come across as sane!

That's what it's here for. :)

I've had practice. ;) Every now and then in the spamming I stop to try and say something calm and coherent, so. :D

Bravo! I think this is an excellent and really quite brief but informative summary.

Thank you!

Word, and thank you. For me it is about free speech and free expression as well as business practices (though primarily business practices), in that I believe private corporations are/should be just as bound by the First Amendment as government institutions if they are "open to the public." To be "open to the public" means that an institution should not be able to discriminate against what parts of the public it wants to keep out, or we're right back to segregation.

My interest in freedom of speech and expression is NOT defending "child pornography" since there IS no CP or harm to children involved here. Obviously fictional depictions and especially text works, in all but the most extreme of circumstances, have gotten a pass under the law so far, and even when they don't pass, fall under obscenity rather than child porn, since there are no real children involved. Not only that, the characters in almost all of the art questioned are fictional teenagers, who are even depicted as sexual in mainstream media. (*coughcough American Pie coughcough* *cough cough Not Another Teen Movie coughcough*)

I agree with what you're saying. It is an issue of free speech in that LiveJournal has declared that it values free speech. But it's not an issue of the first amendment. I'm going to edit in, somewhere, something explaining that.

*nods* Possibly, though it's my belief that the laws apply equally. If LJ is going to make decisions based on US obscenity law, then, it is also equally bound by the First Amendment. You can't pick and choose what laws you follow.

I'm not an American, so excuse my ignorance -- but isn't the First Amendment meant to apply only to the government? I mean, people do believe free speech is an extremely important thing, so socially there's a block against blocking free speech in any way, but the First Amendment only applies strictly to the government. Right?

I think it's a very sticky issue. Yes, if you take a strict view (e.g. "nothing but the words") yes, it does only apply to the government. That said, I think a strong case could be made for LJ, since its Abuse team has taken on the responsibility of enforcing obscenity laws (a governmental responsibility, usually) that it could be therefore restrained by said amendment if it were acting, either in effect or in actually being deputized, as "an agent of the government."

Thank you for clarifying that.

^_^ No problem. Once upon a time, I wanted to be a lawyer, before I realized it's much more TL;DR than cool stuff. ^_^

I wanted to be a lawyer at one point -- more because apparently it paid well, than anything else. :p

LJ isn't enforcing obscenity laws, its making decisions and using obscenity laws as justification. I believe that whole agent of the government business doesn't come in unless LJ is actually acting as an arm of the government. To put it another way, all persons, whether actual or corporate are required to follow the law.

Your First Amendment problem is this: the relevant text of the first amendment states "Congress shall make no law ...abridging the freedom of speech" In a number of Supreme Court rulings "no" has been taken to mean "very few well justified" which brings us to obscenity. So, in other words [i] based on current law[/i] (which is neither an endorsement or condemnation of the current law) material judged obscene is NOT speech protected by the first amendment, but is one of several exceptions (including sedition, libel, slander, and the clear and present danger test)

I'll double check with my roommate (a law student) on the agent of the government business.

This is an excellent explanation! Thank you!

Just one small issue, but one to make it absolutely correct: Six Apart does not benefit from the charitable donations to the three groups tied to the guy from its venture capital group. At best, they're simply related in a very small way and didn't disclose it. At worst, its probably charities chosen by a friend-of-a-friend recommendation - but to say charitable donations to those three groups actually benefit Six Apart is a huge stretch.

Thank you!

I'll edit that, then. :3

Halfway through first cup of coffee and I found a way to say it better.

Yes, it might be "keeping it in the family" but SA does not benefit from it. If the people who chose the charities were unaware of the ties, then it's a big coincidence, but it's just one more concern having to do with this whole kerfluffle.

Right-o. :)

Thank you for this summary post! You are made of win. :)

You're welcome. :)

Linked. : 3

Thank you! ^^

What you've written here is very good, and civil, and you seem to have a decent grasp on the legalities involved. A couple notes of caution for you:

First Livejournal is [i]huge[/i], and the idea of a "fandom" is a rather vague and amorphous. There are lots of people who are fans of various works, who haven't even heard of the shenanigans involved here. Perhaps more to the point, if the entirety of the fandom left, live journal would still be around doing just fine. The fandom is not monolithic.

Second, on the issue of money, all companies like to make money. In fact, its a legal requirement for a corporation to do what it can to look out for its economic self interest. Muttering darkly about

Third, as you've said you're stuck with speculation. Speculation, in my experiance is bad.

Fourth, the legality issue. I'm not a lawyer, and I'm not an expert on this, but you've got a two fold issue. The first half, is according to the Terms of Service, SixApart can do pretty much whatever the hell it wants until it runs into certain fraud or civil rights laws, which it has not clearly done yet. The second half deals with United States (and other nation's) laws and related social mores. Child pornography is a problem under two sets of laws, and social mores that say "this is wrong." Various laws against child abuse, sexual abuse of minors, support thereof, are focused around the victimization of a real child, especially in a sexual context. Since art is a fictional representation, and presumably (I haven't seen it) is not an encouragement of the activity, nor so photo realistic as to suggest an actual victim, this is not your problem. Obscenity laws, and the social mores that correspond to them are. The Miller test talks about "community standards," a vague useless term as there can be. What is the community? A town? A state? A region. Add in the internet, and we've got brand new problems of how to define a community. "The Fan Community" or at least this particular one, doesn't have a problem. The community of LJ administrators apparently does, and they seem to be attempting to represent either the larger community of LJ users, or the larger community of... civilized people perhaps? Which one should have precedent? My point here is not that what SixApart is doing is right, but that it is simpler than "we are right, and you are wrong." Dealing with what is "obscene" and thus in contradiction with the "standards of the community" is debate with poorly defined terms and grounds.

(Comment limit, continued in reply)

Fifth, the fandom has not had their accounts deleted. Two users have had their accounts suspended.

Sixth, and finally: Doing something stupid is not better than doing anything. Getting angry and expressing your anger, is not inherently productive. Remember, LJ can probably live without you all. I would wager a large amount of money theres a line of thinking with LJ staff that says "we're probably better off without these nuts, why are we even bothering?"

All of that having been said, the anger, frustrations, and concerns that people have are completely understandable. There is a significant amount of time and energy that people have invested into their journals, and their art, and the communities that exist on LJ. This makes people pissed off with that is threatened. This all makes sense. Now comes the catch.
Marshalling the energy of a loosely affiliated group of angry customers is really hard, as is making them put on a civilized face. It is definitely worth it. If you make this battle a legal one, you'll probably lose. You don't have the money for the lawyers, and the balance of the law isn't on your side to begin with. If you make this battle one about loud, angry protesting, you'll probably lose, blending in with the rest of the sound and fury of the internet, signifying nothing. If you come in as civilized, concerned customers, and make LJ [i]want[/i] to keep you, I think you'll do just fine. I suggest lining up behind the more clearly reasonable and uncontroversial requests (say, requesting clarifications) while discarding the ones that are just going to be flame/fight bait (firing of Abe)

At the end of all controversies, there is a choice. Someone can bite the bullet, get organized and productive, or they can not, and the controversy disappears into the aether. Having a productive discussion is the first step, and kudos to you for doing what you can to clarify and state what you believe.

-K

P.S I can't find the post where Abe is to have mocked people. Could you provide a link?

I've seen a lot of varying opinions about whether the comment spamming is a relevant protest or not. In terms of visibility and volume, it's certainly up there. In terms of content and push power, perhaps not, but it does clearly demonstrate that people are worried. Personally, I'm trying to keep my comments non-offensive, if not long and intelligent. xD

I'm not a leader, in fandom. I doubt I'm a BNF to anyone beyond my tiny circle, so I cannot really influence anybody to do anything. The things I mentioned in this post are not things I necessarily believe in or encourage. I do believe Abe Hassan was unprofessional and a bit of an asshat really, but I agree with you that it's probably one of the requests we shouldn't push at.

Re: P.S. I'm afraid I can't, because I haven't been bookmarking things and besides, that thread (or entry?) was deleted by the mod of the community. People have screenshots and stuff over at

news, but I'm not going to make it a policy to track down every single comment or post that I've read. That's why I stated that this isn't a comprehensive round up. This is my thoughts on. There's a news article about it, though, that I already have in a tab -- here.

"I'm not a leader, in fandom."

Ah. But you [i]could[/i] be. Believe me, all leadership takes is effort. If you lead, they will follow.

Well, to the extent I can I'm being reasonable, and asking others to be reasonable. I don't have the time or inclination to become a true figurehead.

S'your choice, and reasonable people are always appreciated. Good luck with everything

First of all, I'll refer you to the beginning of my entry, where I point out that this doesn't claim to be unbiased or an accurate roundup.

I agree that fandom is a large thing and it's impossible to refer to it as one single block. I'll go through and fix that up a bit.

I don't have any objection to LiveJournal earning money. I never said I did, if you read it closely. However, they've broken promises about ads formerly made to the users, they're forcing even paid and permanent accounts to see these ads,

As for the Miller test, what I said about it based on the reactions of everybody I've spoken to about this issue, which is a lot of people and not just confined to the fan community. I remember four distinct people who said it was disgusting, and I can't count how many I remember saying that they don't see anything wrong with it. The problem with the application of the Miller test is, however, not our greatest concern, really.

Whoops, lost a line there.

I don't have any objection to LiveJournal earning money. I never said I did, if you read it closely. However, they've broken promises about ads formerly made to the users, they're forcing even paid and permanent accounts to see these ads, and they've contradicted themselves now about things which were said before the permanent account sale.

I'm a free account user, so I really have no knowledge of any or all of that.

Back when LiveJournal was sold to Six Apart, the promise was still as Brad gave it. "No ads." Then there were ads, but only plus accounts could see them. Then basic accounts could see the ads on plus accounts. And now even paid and permanent accounts have to see the sponsored moodthemes. It's not my greatest concern, but it does bother people.

(I have one of each -- permanent, paid and plus, so I'm pretty sure what I'm saying is correct. xD)

The problem with the Miller test, is that "community" will be almost definitely be defined in a way that is the least favorable to you. Hypothetical situation:

LJ user johndoe123456 posts a piece of artwork that involves sexual contact between say... two minors. We'll call them a male 11 year old and a male 15 eleven year old. Just to confound the issue even more, the younger male will be bound, and feminized with make up and a dress.

Random member of the public sees the work and complains to SixApart because (s)he offended. The line "Think of the children" is flung out there.

SixApart reviews the work, and decides, within context its not obscene material, and does nothing.

The previously mentioned random member of the public decides to get offended, calls up a local conservative church, who calls up a lawyer, who calls a friend in the state government, who calls more lawyers, and suddenly SixApart is named co-defendant in both criminal and civil legal proceedings. (Yes, this shit happens)

The first court to see it, decides that the case cannot be thrown out because of the vague nature of obscenity law. Months and months and years and thousands of lawyer hours later, the case goes to trial, and the jury determines the facts of the case show that Six Apart was negligent and thus liable, in policing its site for obscene material. Six Apart appeals. OR Six apart wins, and the government and/or Concerned Citzens against Slash appeals.

SixApart is already several tens of thousand dollars in the hole by now because of lawyer fees. Somewhere in the decision of the case is a tiny line from the judge that says "This work can be reasonably construed as obscene by a member of the community." Notably, it won't dictate in particular WHY its obscene. It won't address its because of the age difference, the age of the younger, that they're both minors, that its male/male, that it has elements of non consensual sex, or the feminization of the younger male. It will just say its reasonably construed as obscene.

That could happen, and if it did, it could be a decade before the case is even close to settled. Six Apart's lawyer is probably advising them to avoid the situation I just described, because of obscenity law, which is determined by the Miller test.

Thus, it is somewhat a concern.

What I meant by "not our greatest concern" is that we're not so much protesting about the application of it in this instance. :) I, at least, understand all that you're saying about this, and can understand LJ erring on the side of caution.

Well, good luck to you and your fellows in what you do.

I think that a lot of this could be bettered if LJ would say something...anything to address people's concerns. That's what worries me the most. We need clearly spelled out guidelines of what is and is not allowed, and guarantees that procedures will be followed when journals are suspended. I don't understand why they aren't doing that already.
Obviously, anyone can say that if you don't like it, you can just go...but I don't buy into that. LJ is a community, and until recently, I'd thought that even Six Apart/ the admins/ everyone else up there understood and valued that.
Maybe it's changing.
I tried to post on

dw_news yesterday, and I got the message that the maximum comments had been exceeded. Is there a new post I've missed?
Anyways, this whole thing bothers me on a lot of levels. Thank you for being intelligent and articulate about it (per usual).

Very much so. A lot of the indignation is simply about the fact that LJ won't speak up. People are saying "if they want us to go, we'll go, but they need to say so".

Yeah, we've reached the maximum comments on quite a few

news posts now. This is the post we're currently in -- there have been no new statements about the situation as of yet.

Just a quick thought on the procedures and guidelines. I did a quick look at some posts that LJ did, and reading between the lines, this is my guess:

Their lawyer has advised them that being specific is an exercise in futility, that will only result in complaints about things that are against the spirit, but not the letter of the guidelines. In other words, prevention of gaming the system. Part of the problem is the larger U.S obscenity laws that are a part of the policy issue here are even MORE vague than the clarification post on 7/19. I would further guess that LJ is running on a "We're not looking, but if someone shows us, we'll look" policy (think underage drinking policies at most universities) and is thus reliant on complaints. Upon receiving a complaint, they are erring on the side of covering their ass.

For some reason, I wasn't signed in. Oops.
-K

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Musing: Strikethrough/Boldout - My thoughts on...

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