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Comment by roenxi | Hacker News Reader

The US has some clear laws against government controlling speech and, in the abstract, that makes it pretty much impossible to censor games. Various factions - exactly who it is difficult to pin down - have been working hard to set up a system where they can shut things down without ever explicitly instructing anyone to do anything. This appears to be the system engaging by accident because some crazy from Australia accidentally said the right thing to the right people.

So I do actually believe Mastercard when they say this, but holding them accountable anyway is probably for the best. They're likely the single group with the most influence over the regulators.

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> "The US has some clear laws against government controlling speech and, in the abstract, that makes it pretty much impossible to censor games."

For background,

https://en.wikipedia.org/wiki/Brown_v._Entertainment_Merchan... ("Brown v. Entertainment Merchants Association" (2011) ("ruling that video games were protected speech under the First Amendment as other forms of media"))

First Amendment applies to the _government_, not private entities.

I think the larger point here is that the government is suppressing protected speech by using private sector actors as intermediaries.

Is there proof the government actually uses this apparatus?

I don't think there's any government involvement necessary here - Mastercard has some censorship apparatus (which they claim to be necessary for their brand's reputation), and they used it (apparently through pressure from an Australian group) towards video games.

This is really bad but I don't think it makes sense to believe a government was ever involved here. Of course, there should be laws put in place to regulate mastercard into a common infrastructure. They should not be able to deny processing a legal payment because of nebulous "brand reputation" reason.

In this case? Not that I know of, but I'm not following closely.

In general? Absolutely - search 'Operation Chokepoint'.

There's a great summary in the middle of this (very long) article under that header: https://www.bitsaboutmoney.com/archive/debanking-and-debunki...

There are laws in place to regulate this behavior, but the government has chosen to protect mastercard from enforcement in this instance. That's the smoking gun.

Mastercard could simply refuse service for those games in particular instead of demanding (through proxies) that the games be banned from Steam. There's a clear antitrust violation.

https://en.wikipedia.org/wiki/Operation_Choke_Point

if we're going to point to this there are much much more problematic instances of this happening, in particular democratic pressure to platforms like twitter and facebook to suppress certain information as "disinformation" even when it later came out to be true (hunter biden laptop)

Now read the grandparent comment you're replying to. You're just talking in circles now.

In age of megacorps, this is a great weakness of this right.

We need to break them up solely based on size - if they’re too big on revenue or profit or market cap or employees, break them up. Or at least huge taxes on the largest companies and lower taxes on small ones. Market cap about 500B? Here’s an additional 25% tax on profits. Above 1T? Make that 50%.

For certain industries it also applies. Common carriers (e.g. telecoms) and utility companies are also not able to censor or refuse lawful business.

I would argue that entities such as VISA and Mastercard have so much power that they are government-like entities and should be treated as such (i.e. a common carrier).

> This appears to be the system engaging by accident because some crazy from Australia accidentally said the right thing to the right people.

This has been happening for years already, this is not an accident caused by a crazy lady from Australia complaining to the right people. She simply took advantage of Mastercard already engaging in censorship and challenged them and their payment processors to take on an even broader interpretation of Mastercard's obscenity rules.

Ehh, mastercard and visa have been playing these kind of games for years. For example hypnosis is a censored term on most porn sites, and most try to take down videos using or referencing marijuana in videos. Not because either of those things are against the law to have in a video, but because payment processors like Visa and Mastercard will blacklist sites that don't of their own volition. Go ahead and go type hypnosis in any major porn site and you will see you get zero results.

Say fuck on TV.

Apparently you can do that between 10pm and 6pm on broadcast TV, or on cable TV.

Which is a pretty messed up situation.

In addition to the sibling comment about safe harbor hours, the FCC regulates not speech but the shared airwaves. Print is irrelevant, and that’s why you can do whatever you want on cable.

Also, the FCC does not directly set standards and instead responds to complaints from the communities in which the broadcast is available. So it’s conceivable that in an environment where nobody cared, you could do this at any time of day.

Didn't know the FCC regulates Youtube. Nevertheless, in a country with no regulations about saying "fuck" on TV, I get beeps on Youtube.

Many stations affiliated with the ABC network did, from 2001 to 2004, in primetime by airing "Saving Private Ryan" unedited for Veterans Day.

I am quite surprised how wrong opinions like yours are. There is no argument of free speech here, they are a private business and as such can decide what they allow and don’t allow on their network. It’s no different than if cloudflare had a click through that said no adult material.

You can hand wave around well they are a monopoly or some related argument but the government does not see it that way. Visa and Mastercard for decades have censored adult sites on their network. At the end of the day I suspect they would be happy to take the fees but they are the ones underwriting the risk and there have been cases over the year in the US at least that challenge how extreme you can go with Adult material. Even today there are certain categories that are much harder to get setup for processing.

Edit: to be ultra clear, I would love more competition in this space but at the same time there is no argument around free speech here.

"There is no argument of free speech here, they are a private business"

Constitutional rights are also civil rights - businesses may not violate them nilly-willy in this specific manner which causes damages to people.

You’re confusing constitutional rights with business obligations. The First Amendment restricts government actions, not private companies. Mastercard isn’t violating free speech by refusing to process certain payments. Civil rights laws protect against discrimination in specific categories like race or religion, not content moderation. Unless adult content is a protected class, your argument doesn’t apply.

The argument from free speech is that government should not be allowed to censor, regardless of the mechanism. Payment processors currently offer that mechanism.

If the government were coercing Mastercard into censorship, that would be a free speech issue. But absent state pressure, a private company choosing not to do business with certain content isn’t censorship in the constitutional sense. That’s just market behavior. If you want to challenge the influence of financial infrastructure on speech, that’s a separate (and valid) policy debate but it’s not a First Amendment violation.

Your distinction is correct as far as it goes, but there is a third observation that must also be taken into account, which is that the tidy division of economic, social, and political matters into private and public domains is uninteresting from the perspective of power. An example of this is how gov'ts, constrained by law, cannot legally engage in widespread surveillance, have found what is morally a loophole by involving private companies who are able to do so more freely. Or, for example, the policing of certain ideas on privately-owned social media which have become de facto public forums. It is completely uninteresting to claim that you aren't forced to use these forums or that you can start your own as jejune free market extremists like to claim. A little intellectual maturity will make plainly obvious why that is the case.

Now, I happen to think that, pace Dershowitz, adult content does not fall within the scope of free speech. The entire purpose of free speech is to allow the truth to be to expressed. Free speech takes an attitude of pragmatic permissiveness toward certain varieties of what are objectively bad speech as the price for that to happen. It's a choice that was made in American political history, but even here, the bounds of what is legally permitted under free speech have not remained fixed for various reasons.

Adult content is nowhere in the vicinity of this notion of free speech, and certainly not its moral purposes. There is no right to produce or to view adult content. There is no right to anything that is objectively unethical, and both the production and consumption of such content is unethical. Gov'ts can choose to take a permissive stance toward such activity for prudential reasons (for example, historically, while prostitution was categorically condemned on moral grounds, gov'ts took a permissive attitude in some respects, because they felt that banning it would cause still greater problems), but they have the authority to criminalize it.

So, given that it isn't a free speech issue, I have no problem, in a free speech context, with private companies banning such content from their platforms or from being the subject of transactions passing through their systems.

It's a free speech issue if the government _can_ pressure Mastercard and, separately, Mastercard _can_ act as a censor. That government isn't using this ability in this particular instance is no more of a consolation than if there was a law that permitted censorship but was not used for that or enforced in practice.

Severing either of these two links would be enough though.

You’re shifting from a First Amendment claim to a broader “potential for abuse” argument. That’s fine, but let’s be precise.

1. Government pressure only triggers a First Amendment issue when it’s actual, not hypothetical. Courts require clear state action or coercion.

2. Mastercard acting on its own isn’t censorship in the legal sense, it’s a private company making content-moderation decisions. You may not like that power, but it’s not unconstitutional.

If you want structural reforms, like regulating payment networks as common carriers, that’s a policy question, not a current free speech violation.

The amendment is about laws, not execution. As long as we're not interpreting the amendment literally and trying to infer its spirit at all, the equivalent in this case is that the executive branch should not have the power to legally censor people or companies at all, as opposed to merely not using that power.

Not sure what your point is. Mine from the beginning is there is no constitutional issue like free speech here as the government is not coercing Mastercard or Visa. There are a lot of other valid complaints and arguments but free speech is not one.

I'm saying that Mastercard/Visa being able to do this on their own is one half of a free speech issue. It's not a free speech issue of its own, but it creates a free speech issue when combined with them being vulnerable to government pressure.

Imagine that the government instituted a private organization that had the power to cripple any business, with no recourse, and had control over it. The first amendment does not literally prohibit this, yet this would have clearly been a violation of the first amendment in spirit.

What is the government's role here? As far as I can tell the censorship was coordinated and facilitated by private parties.

You have a for profit business that in some areas like adult content walks a line between regulatory oversight, public outcry and the risk to underwriting the business. In this case it was public outcry, there have been instances in the past where different local jurisdictions have come forth. My point is they walk the line between those three areas.

Competition doesn't matter if entities have to simultaneously follow all of the payment processors' rules. It means in order to compete you have to find people willing to give up everything else. Which is an impossible proposition.

It's like if a tier 1 ISP only peered with networks that peer with networks that censor XYZ. Allowing for these kind of agreements leads to censorship and is why net neutrality is important from the government.

FWIW, "tier 1 ISP" is less prestigious than you'd think. Many tier 2's are bigger than many tier 1's. Being a tier 1 is kind of a self-exclusionary, nose-snubbing policy and in some ways it's surprising they manage to hang onto existence at all, though not in all ways.

This typically comes up when someone thinks they're getting better transit service from a tier-1 than a tier-2. They're not. A tier-2 ISP can have better routes, since a tier-1 will refuse to deliver your traffic anywhere that requires them to pay money. Some places are just unreachable from tier-1 ISPs.

Famously, for over a decade Cogent has refused to receive packets from Hurricane Electric without payment because idk profits, and Hurricane Electric has refused to pay them because it's a tier-1-ish, so you just can't talk to Cogent customers if you're an HE customer and vice versa. (I think HE eventually relented by paying a third-party to forward packets to specifically Cogent, even though they have tier-1 status to everywhere else)

What prevents any old ISP from claiming it is tier 1?

Being laughed out of the room?

You're confusing the concept of free speech with the First Amendment. Any time a person is prevented from expressing themselves is a violation of their freedom of speech, even if they have no legal right to speak.

But even in the context of the First Amendment, freedom of speech does not only apply to the government. For example, net neutrality laws prevent ISPs, which are generally private companies, from restricting Internet traffic on free speech grounds.

To the extent that it is legal for a payment processor to censor speech, the only reasonable conclusion is that the law is wrong and must be amended. Large corporations are much more similar to governments than they are to private so individuals, and should be treated as such.

You’re incorrect on both legal and factual grounds. The First Amendment applies only to government actors. Private companies, including Mastercard, have no legal obligation to carry or support speech they disagree with. This is settled law (Manhattan Community Access Corp. v. Halleck, 2019).

Net neutrality was about common carriers (ISPs) due to their chokepoint role in internet access. Payment processors are not classified as common carriers and are not subject to those rules.

If you want laws changed to regulate them like utilities, that’s a policy argument, not a free speech violation under current law.

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