EFF Wins Battle for Erotic Fiction Against Internet “Gatekeeper”

November 13, 2012
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Securing a victory for constitutionally protected free speech, the Electronic Frontier Foundation has convinced online payment provider Stripe to overturn their earlier decision to suspend the account of the Nifty Archive Alliance, a “nonprofit entity that supports the Nifty Erotic Stories Archive, a free, volunteer-supported website hosting a wide range of erotic fiction for the GLBTO (Gay, Lesbian, Bisexual, Transgender & Others) community.”

Erotic fiction is not intended for all ages, but it is constitutionally protected by the First Amendment. While convincing Stripe to reinstate the Nifty Archive Alliance account is an important victory, the larger issue at hand is the importance of third-party intermediaries — including Stripe, PayPal, and other online payment processors — in keeping protected speech free from censorship. The EFF sees these third-party intermediaries as “gatekeepers of online speech,” arguing that “overly restrictive policies can result in removal of speech that the government is prohibited from censoring.” Key to Stripe’s initial actions was that the company “believed that some of the content on Nifty.org might violate Stripe’s agreements with Visa and MasterCard.”

According to the EFF:

Stripe suspended Nifty’s account because it feared that the bestiality fiction would run afoul of the Visa and MasterCard brand protection rules. MasterCard’s rules, for example, ban “sale of a product or service, including an image, which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of nonconsensual sexual behavior, sexual exploitation of a minor, nonconsensual mutilation of a person or body part, and bestiality).”

Visa and MasterCard’s brand protection rules are subject to a wide range of interpretation. Questions about what erotic stories are overly offensive or not sufficiently artistic beg for interpretation, and we are concerned that payment processors might be choosing to shut down sites that host entirely legal fiction out of fear of violating these agreements with the upstream providers.

The role of third-party intermediaries is incredibly important to keeping an open Internet, but as the EFF describes, companies like Stripe have the right to shut down accounts of organizations that they disagree with — speech is constitutionally protected, but access is not:

While the Constitution may prevent the government from censoring controversial works of erotic fiction, it does not prevent payment processors from shutting off the accounts of legal publishers. And as our literary traditions and fictional experiments move into digital spaces, there are ever-increasing opportunities for third party service providers’ rules to supersede the First Amendment and censor speech.

To be clear, payment providers as well as other intermediaries have their own First Amendment rights not to carry speech with which they disagree. But we believe that intermediaries—like ISPs, registrars, payment providers, search engines, and even platforms for user-generated content like Facebook—are most valuable when they serve as neutral platforms. Online speech is dealt a serious blow when these intermediaries choose to actively censor controversial content. Worst of all, censorship by these private actors isn’t subject to judicial appeal; terms of use typically give these intermediaries the right to shut down any account at any time for any reason.

The Stripe/Nifty Archive Alliance situation is not the first time the “gatekeepers” have taken it upon themselves to censor the Internet.

In February, PayPal instituted new policies in regards to erotic material: “PayPal told publishers that they cannot sell erotic material that depicts incest, pseudo-incest, rape fantasies, bestiality (including non-human fantasy characters), and BDSM. Selling these materials will result in the deactivation of the publishers’ PayPal accounts.” The Comic Book Legal Defense Fund joined with 22 other organizations to decry PayPal’s policies.

In March, Mark Coker, the founder and CEO of e-book publisher Smashwords, signaled his company was reverting to their original terms of service after a meeting with PayPal assured him “they will soon announce revised content policies that I expect will please the Smashwords community.”

Shortly thereafter, PayPal released a statement that announced their intent was to:

…focus this policy only on e-books that contain potentially illegal images, not e-books that are limited to just text. The policy will prohibit use of PayPal for the sale of e-books that contain child pornography, or e-books with text and obscene images of rape, bestiality or incest (as defined by the U.S. legal standard for obscenity: material that appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political or scientific value). In addition, the policy will be focused on individual books, not on entire “classes” of books. Instead of demanding that e-book publishers remove all books in a category, we will provide notice to the seller of the specific e-books, if any, that we believe violate our policy.

While PayPal’s decision was seen as a victory for free speech, it still left some lingering concerns. The American Booksellers Foundation for Free Expression and National Coalition Against Censorship noted:

The PayPal statement does not fully resolve all issues, however. It is not clear whether legal material would be affected by PayPal’s policy regarding “e-books that contain child pornography, some of which may be legal.” Nor is it clear how PayPal proposes to focus “on individual books,” rather than classes of books, since it would be impossible to individually screen all e-books bought and sold online. “It is too early to conclude that PayPal has completely abandoned the idea of policing the content of books purchased online,” [Joan Bertin, executive director of the National Coalition Against Censorship (NCAC)] said. “We hope so but won’t know until the company releases a formal policy. We have to see how it is enforced.”

Over the summer, Amazon was at the center of a controversy concerning a lack of clarity on how they make content-related decisions, with “advocates accusing the company of both practicing censorship and profiting from controversial texts. Complicating matters is the role of self-publishing, or print-on-demand books, that can be created, uploaded, and offered for sale at Amazon by anyone with an internet connection.”

Erotic literature is often at the heart of these controversies, and the EFF sums up the need for protection:

Literature and art have long provided refuge for exploring a range of human emotions through metaphor, mythology, and fantasy. Some of the most respected works of literature in our culture have dealt with issues of rape, bestiality, and incest—works such as Nabokov’s Lolita, numerous Greek myths, and even the Bible. While US courts once routinely found books obscene, including many now considered great works, modern jurisprudence recognizes that erotic fiction, even that dealing with taboo subjects, can have serious literary and artistic value, and be protected by the First Amendment.

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Mark Bousquet is the Assistant Director of Core Writing at the University of Nevada, Reno, and reviews movies and television programs at Atomic Anxiety.