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Sommerswerd v leif erikson

Discussion in 'Infraction Review' started by Camikaze, Sep 12, 2016.

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  1. Camikaze

    Camikaze Administrator Administrator

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    Sommerswerd would like to appeal this 1-point infraction for '(Minor) Inappropriate Content' issued by leif erikson in the Sports Talk forum. Upon his initial request for an appeal, I requested that he discuss the matter further with leif. He did so, but no resolution was reached, so an appeal is going ahead.

    The PMs are as follows:
     
  2. Camikaze

    Camikaze Administrator Administrator

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    I think this raises some interesting issues. In response to the points raised by Sommerswerd in his PMs, I'd note the following:

    First PM:

    1. Whilst the general subject of Colin Kaepernick is on-topic for the thread, it's hard to see how the particular post furthers a discussion of that subject. So while we're not left scratching our heads at why this post exists in this thread, it might still qualify as spam. On the other hand, the infraction isn't actually for spam.

    2. This doesn't appear to be particularly relevant to the inappropriateness of the post (or posts, if you're also looking at what it's replying to). It's interesting background maybe, but there's this from the forum rules to keep in mind (as leif did in his reply):
    3a. This point is relevant, as it addresses the inappropriateness of the post.

    3b. This complaint misconceives the nature of the infraction. The infraction was not issued because there's an unwritten forum rule that you can't make any jokes surrounding 9/11. Rather, certain forum standards are defined by reference to the reaction of a notional reasonable forum member. In the case of inappropriate content, the relevant inquiry might be, "is this an appropriate post for the forums, keeping in mind the sensibilities of a reasonable forum member and our 'family-friendly' standards?" The relevance of the date on which this was posted (which seemed to give rise to the original inappropriate post which this is replying to), is simply that it plays into that equation - comments on certain sensitive topics are more likely to be considered inappropriate, and so are more likely to fall on the wrong side of the relevant threshold. That's largely what leif is getting at in his reply.

    4. & 5. This is relevant to the intention behind the post, but the intention behind the post is not an overly relevant factor. If the post to which Sommerswerd was replying should be reasonably interpreted as implicitly referencing the date on which it was posted, then Sommerswerd's post would be picking up on that, whether he intended it to or not. But there could be some mitigation for being obliviously inappropriate, if the post is considered to be inappropriate.

    6. This complain misconceives the rules of the Sports Talk forum. RD and non-RD threads and standards only exist within the OT forum. The regular forum rules apply to all threads within the Sports Talk forum. This standard is higher than the non-RD standard, and arguably a bit lower than the RD standard.

    As for the second PM:

    1., 2., 3. These are relevant to whether the post is inappropriate.

    4. This is misconceiving the relevant standard - a post isn't inappropriate simply because someone doesn't like it and finds it offensive. It's inappropriate if it can be reasonably considered to be offensive, given the site's standards. The relevance of the report leif mentioned is that someone actually being offended does lend credence to the idea that a post might reasonably be considered inappropriate.

    5. Trolling and inappropriate content have a bit of an overlap. If you post something offensive, then it might be considered either trolling or inappropriate content. Crucially, trolling on the site doesn't require positive intent to induce a negative reaction; it's simply about posting something that is likely to provoke such a reaction, whether that's your intention or not. So by citing the trolling rules, leif isn't saying that Sommerswerd attempted to offend; he's just saying that we have rules which cover posts which are offensive.

    6. Generally a post isn't going to be deleted unless it actually breaks the rules. And if it breaks the rules, then there's no reason it shouldn't be infracted or warned. I would not interpret this point as an admission that the post was rule-breaking, however; Sommerswerd is just acknowledging that he understand we're free to delete posts to protect what he sees as overly sensitive souls.


    The point leif then raises in response is interesting - that Sommerswerd is responsible for everything which is included in his post, including that which he quotes. That's true; we routinely will warn people for quoting inappropriate language, for example, because they're essentially duplicating the inappropriate language in their post. The same would certainly apply to particular types of inappropriate content such as sexually explicit images.

    But I'm less sure that the quoted content in this case should be imputed to Sommerswerd, thus contributing to his infraction. I don't think it's really been our practice to infract people who respond to a post which is deemed offensive, and do so by quoting that post in their own post. It's not patently obvious that the quoted post falls within the inappropriate content rules, unlike instances of inappropriate language or sexually explicit images, as examples. So I don't think it's necessarily all that fair to pin any offensiveness in caketastydelish's post on Sommerswerd, simply because he quoted it. On the other hand, the rules are pretty explicit on that point - 'if that content is offensive, you may find yourself infracted for it'. On the third hand, 'may' leaves room for discretion, which I think generally has been, and should continue to be, exercised in favour of letting off people who quote content which can only be deemed offensive after some degree of textual analysis has been engaged in.

    It should probably be noted that an appeal about 4 years ago decided that it's not necessarily against the rules to quote offensive content, if the purpose of quoting that offensive content is to point out how offensive it is (in that case, it was hate speech). I'm not really convinced that that's the correct approach to take. I think a better approach would be to look at how patent the offensiveness is. If you're posting hate speech even to point out how offensive it is, that's not necessarily something we want our users to be exposed to when they visit this site. But if you're not aware that what you're quoting is inappropriate because it's a line-call, then I think it's reasonable to think you'd receive the benefit of the doubt.

    So I'd prefer ignoring the quoted content in this case, and just looking at what Sommerswerd himself posted (which may, of course, involve a consideration of the quoted content, but purely for context).

    The question of whether that could be reasonably considered to be inappropriate is a subjective judgment call, which leif has made in one direction, and upon which reasonable minds might differ. To overly complicate things, this raises an issue as to the proper approach to an appeal. Are we re-exercising the necessary discretion de novo, or are we just looking at whether leif's decision could not fall within an appreciable discretionary margin? Are we asking ourselves, "what would I have done in this situation?", or are we asking "is leif's decision fairly reasonable, even if I wouldn't have reached the same conclusion myself"? The language of 'appeal' and 'review' would probably indicate the latter, but I think our approach has typically been the former, and that's probably what most people are expecting when they seek a review - they want to know if other moderators would've made the same decision.

    That's an important question in this case because I think this is pretty borderline. Yeah, I can definitely see why leif issued the infraction; the post does have a distinct air of inappropriateness about it when looked at in a particular way, and when considering that caketastydelish's post clearly was picking on 9/11 (as confirmed by his explicit mention of the date in his immediately subsequent post). So I think leif's conclusion is reasonable in the sense that it's probably within the bounds of reasonable discretion that he could see that as breaking the rules regarding inappropriate content.

    But I personally would not have looked at this post and thought it deserving of an infraction for inappropriate content. I think it might be spam; even if we can see the tangential relationship to the general topic of the NFL, that's different from a political discussion, which is itself different from this post which doesn't really attempt any form of discussion. But the infraction isn't for spam, it's for inappropriate content. I don't feel comfortable with changing the basis of the infraction if it's found that the stated basis isn't satisfactory.

    I think the pop culture reference is obvious enough to not be offensive (even if it don't really see the point of the reference - I don't think it's making some grand statement about American attitudes as Sommerswerd suggests) - I've never seen Team America, but I'm aware of the scene/phrase, and even if I weren't aware, the fact that he included a video would make it clear to anyone coming across the post that he's just making a pop culture reference. Because that reference seems to be fairly pointless, I don't think it's making any sort of inappropriate insinuation about Colin Kaepernick, even if we were to assume that inappropriate statements about public figures would be particularly concerning.

    To my mind, then, the relevant questions are:
    • Should the quoted material be considered as part of Sommerswerd's infraction?
    • Should we be asking ourselves whether we think the post is inappropriate, or whether we think leif was acting outside the reasonable bounds of the discretion available to him?
      • If the former, then was the post inappropriate?
      • If the latter, then was it open to leif to consider the post to be inappropriate?

    I would answer the first question 'no', the second question 'the former', and first sub-question 'no', and in the alternative, the second sub-question 'yes'.
     
  3. Plotinus

    Plotinus Philosopher Administrator

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    The salient point to my mind is that it's entirely unclear to an outsider looking at this that they're joking with the intention of parodying anti-Muslim sentiment. I say this as someone unfamiliar with the general topic of conversation or background to all of this, and to me it looks offensive. This may be a misconstrual of their intent but we judge posts, not intentions. If someone intends a post to be ironic they should make it utterly clear that it's ironic and this isn't the case here. They have to remember that the forum is public and not everyone is in on the joke.

    So I would vote to uphold - but it's a tentative vote, because as I say, I don't know the background to this.
     
  4. Rob (R8XFT)

    Rob (R8XFT) Ancient Briton Super Moderator

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    Leif did mention this to Sommerswerd: "Please remember that you are responsible for everything in your post, including the quote of another member."

    The original post that Sommerswerd quoted was infracted; this is Leif being consistent in my mind, and rightfully so. I felt that the response and video link were inappropriate.

    Vote to uphold.
     
  5. Browd

    Browd Dilettante Administrator

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    I also would vote to uphold.

    Although Keapernick's original actions are sports-related, the specific thread discussing his protest was closed for review by Boots a week earlier, and the only discussion of Kaepernick that I see in this thread appears to be limited to whether and under what circumstances he might be released by the 49ers and get picked up by another team. So, when Cake dropped his post, it came pretty much out of the blue, on 9/11 no less, and was duly infracted. Sommerswerd then took the bait and sailed in his, even more off-topic, response, that quoted Cake's inappropriate remark and added his own for good measure.

    I also agree that the "banter between friends" argument is irrelevant -- "I was just joking and he knew it" has never been justification for a post that on its face violates site rules. And both site rules and our interpretations have been clear that inappropriate content, trolling, flaming and the like are judged without reference to the subjective intent of the poster, which is usually impossible to discern in any event.

    I do think he could just as clearly have been infracted for spam as for the inappropriateness of both his quotation and his own addition, but would uphold the inappropriateness infraction.
     
  6. Camikaze

    Camikaze Administrator Administrator

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    I'll wait a couple more days to see if there's any further input. So far it looks like 3-1 for uphold.

    Sommerswerd has agreed to the publication of the PMs, save for some personal details. I think we can accommodate that.
     
  7. ori

    ori Repair Guy Super Moderator

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    This one is difficult for me I can see both reasons for upholding the infraction and they are mostly in line with what was posted above, still Camikaze's reasoning does resonate with me to some extent and as such I fail to actually favor either decision. If in doubt I guess I should side with reversal.
     
  8. Camikaze

    Camikaze Administrator Administrator

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    I have had the following exchange with Sommerswerd in the last couple of days (which I'll remove from the published thread):

    Moderator Action: Removed.

    Given this exchange, I think everyone involved would be satisfied enough if we left the matter here, rather than further discussing the differences of opinion that might be present, which we could no doubt spend quite a long time working over.

    I'll wait another day or so for any further comments.
     
  9. Camikaze

    Camikaze Administrator Administrator

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    I've informed Sommerswerd that the appeal has been denied. I'll publish this thread shortly.
     
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