Keep Your Hat On


Randy Newman’s iconic song (famously performed by Joe Cocker in the memorable Mickey Rourke-Kim Basinger sizzler, 9 ½ Weeks) came to mind as I was reading all about the latest conflagration: “censorship” of erotic content in literature.

If you’ve been hiding under a rock (or maybe just don’t pay attention to the fortunes of the “erotic romance” genre), you’ve missed this:

A little more than a year after Amazon (finally) erased The Ped0phile’s Guide to Love and Pleasure from the Amazon catalogue (backstory from Selena Kitt here), the folks at Paypal upset the indie publishing applecart by notifying the book distributors they service (including and, and at least one other venue for erotic content, that they would have to remove all titles with content containing “incest, pseudo-incest, rape, and bestiality.”

Bookstrand and Smashwords immediately notified all of their authors of this, and requested immediate compliance with the take-down order. Then the shit hit the fan. The internet buzzed with the outrage of indie authors around the globe. A petition site to Stop Internet Censorship launched (now has 606,800 Facebook “likes”) Smashwords CEO Mark Coker emailed all Smashwords authors who publish erotica. As Mark stated in the email, “their hot buttons are bestiality, rape-for-titillation, incest and underage erotica.” He might have found a better term than “hot button,” I suppose.

Anyway, the debate raged for days and days about this subject of “censorship.” Surely Paypal was a “monopoly” that couldn’t legally tell people what they could sell or what they could buy! Who was Paypal to appoint itself Morality Police? Certainly nobody advocates the glorification of rape, but this was walking on a slippery slope toward more aggressive content control. Paypal was violating our First Amendment rights to free speech! In fact, yesterday, the First Amendment Coalition posted on its website that the Electronic Freedom Federation was “ready to go to court to contest PayPal’s practice of censoring sexually explicit fiction.”

This intrigued me, since I might have thought EFF (and the First Amendment Coalition, for that matter) would have recognized the grave challenge of applying “censorship” laws to a private company.

Lo and behold, Electronic Freedom Federation had said no such thing – and to their enduring credit, stated the issue quite frankly:

…as we explained when WikiLeaks was facing censorship from service providers: the First Amendment to the Constitution guarantees freedom of expression against government encroachment—but that doesn’t help if the censorship doesn’t come from the government. Free speech online is only as strong as private intermediaries are willing to let it be…

…But having a right to speak is not the same as having a right to be serviced by a popular online payment provider. Just as a bookseller can choose to carry or not a carry particular books, PayPal can choose to cut off services to ebook publishers that don’t meet its “moral” (if arbitrary and misguided) standards.

Good on them for getting it right. Shame on the First Amendment Coalition for mis-stating EFF’s position.

Anyway, while it is clear that Paypal has the right to exercise its commercial free speech by not participating in the sale of objectionable content, I couldn’t help but wonder why an enterprise like Paypal – owned by eBay – would care to get involved with the content of the books sold on internet sites. Was there some other commercially relevant basis for setting such a policy?

It appears there is.

As Selena Kitt pointed out, when she began to search for an alternative to Paypal, here’s what she discovered:

 … most merchant-services (i.e. companies that allow you to use Visa and MasterCard on their site) which allow adult products charge a $5000 up-front fee to use their service. Then, they take exorbitant percentages from each transaction. Some 5%, some 14%, some as high as 25%.

Now it was starting to make more sense. The credit card companies charge higher fees for these “high-risk” accounts because there is a higher rate of what they call “chargebacks.” You know that protection on your credit card, where if you dispute the charge, you don’t have to pay for it? Well they’ve determined that happens more with porn and gambling and other “high-risk” sites than others, so they’re justified in charging more money to process payment for those sites.

Paypal doesn’t want to have to pay Visa and MC for carrying “high risk” accounts on their books. You have to remember that Paypal is a middleman. Sites that carry high-risk material have to pay the high-risk costs of doing business. If you’re going through Paypal, you don’t have to pay that. Until Paypal catches you. And then they insist you take down your high-risk content or lose your account.

Regardless of what many consider an unwarranted infringement on their right to sell or buy erotic literature, I doubt most of them would go so far as to argue that Paypal (or Smashwords) would have to underwrite the higher cost of dealing in that segment of commerce (i.e., the purchasers of pornography and erotica).

Let’s finally take a moment to look at that “censorship” issue.

As EFF succinctly put it, the First Amendment to the Constitution guarantees freedom of expression against government encroachment—but that doesn’t help if the censorship doesn’t come from the government. It doesn’t matter if the private censor is a mom and pop store or Paypal. What matters is who’s doing the “censorship.”

Ironically, even as the voices of freedom echo across the internet, along comes another attempt at censorship, this one to Have the FCC Remove Rush Limbaugh From the Radio.

Are there any readers out there who want to take a crack at this one? Can you provide a cogent argument that supports compelling Paypal to process the sale of erotic literature as well as driving Rush Limbaugh off the air?


20 Responses to “Keep Your Hat On”

  1. The only compelling argument for this one, Pete, is when the seller is Playboy and Hustler and they can offer Paypal money to stay in the game. Interesting reading, and how unsurprising to find that once again ‘moral ground’ has nothing to do with knowing the difference between right and wrong, and that it’s always about the money.

  2. 2 Dr Anne

    Interesting post. It IS always about the money.

    BTW, the Joe Cocker song, You Can Leave Your Hat On, was used much more effectively in the fun closing scene of the movie The Full Monty.

    • 3 Pete

      So says you, but somehow I think most men would prefer Kim Basinger.

      And always remember, it’s RANDY NEWMAN’s song!

  3. 4 Mayor Biggie

    First off, my opinion is that Rush can share his opinion just like anyone else, but he is governed by a license and broadcast licenses have been revoked. I don’t have the transcripts in front of me and while most news outlets are happy to use the cut versions from Media Matters, I am not. It does seem to me that the grad student might have a libel claim (slander) though there would have to be a public figure test as it pertains to her. Did Rush’s I’ll advised statements thrust her into public figure status or was she already one due to being asked to testify before congressional committee? If a court were to determine she was not a public figure then Rush may be made to prove she is a prostitute and/or slut should she seek to file a claim. I am sure Rush’s apology was attorney driven and this may help assuage malice but I am also sure this would be a great court case due to those questions and the licensing procedure and the FCC’s power to revoke it within the broadcast spectrum where Rush still chooses to operate.

    • 5 Mayor Biggie

      ill advised, damn auto correct

    • 6 Pete

      Mike, the entire radio broadcast – beginning to end – is online. Listen to it.

      As a matter of law, a man’s opinion, no matter how insulting, can NEVER be libelous (see my earlier post, “You Dirty Rotten %^@$#@$^”.

      The FCC license does not make unflattering commentary a censorious offense. In fact, it couldn’t, it would be unconstitutional.

      • 7 Mayor Biggie

        I don’t have three hours to spare, did he call her a prostitute and slut? As to prostitute, that would be libelous in any definition unless she is actually selling sexual services. My guess is he inferred she was those things, but I don’t really see this as anything more than an attention seeking host playing it up for his largely angry audience. The larger argument seems more interesting, does the healthcare legislation have the legal teeth to force employers to pay for contraceptive coverage? But all this really is, is a campaign issue. I doubt any court or administrative agency body will hold hearing one on Rush’s statements, but you can’t as a matter of law go on the radio or any broadcast medium and call someone who is not a prostitute a prostitute unless the person is deemed a public figure then you can pretty much call that person whatever name you wish because that gets into political speech. It would be an interesting case, but it will never happen.

  4. Mike, I’m not defending Rush’s choice of words, and I’m not an attorney–I don’t even play one on TV–but from the snippets I heard/read, I think it’s clear that Rush’s rant was not only protected political opinion but also satire (which has also been a successful defense in libel/slander/defamation cases: see Larry Flynt vs Jerry Falwell). By calling her a prostitute, the point he was making (however clumsily or offensively) was that she testified before congress asking for public policies to dictate that someone else pay for her contraception (the university, the gov’t, the taxpayers, the employers, the insurance companies, whoever), so Rush was making the satirical leap to ‘she wants to be paid to have sex.’ It was clear that he was not accusing her of being a prostitute in the literal sense, so I would doubt there is any slander/libel case to be made. I also think she could probably fit the definition of ‘public figure’ since she testified in front of congress on this issue, not just as a private college student, but also as an expert witness who has been involved as an activist on this issue for a number of years. Again, I’m not a lawyer, so I’ll defer to Pete on the legal definition of ‘public figure’ as it pertains to libel/slander.

    Regarding Rush’s FCC license, I don’t believe the words ‘slut’ or ‘prostitute’ are classified as ‘obscenities’ that invoke the wrath of the FCC. I also don’t believe (and I’m more than willing to be corrected here) that his speech violated any FCC guidelines. I’m not sure we want the FCC yanking broadcast licenses based on offensive political speech.

  5. 9 Pete

    Michael, I don’t know how you form a reasoned opinion on what is or isn’t libelous without listening to or reading the words spoken. Robb is spot on with respect to each point.

    I think it’s obvious that someone who accepts an invitation from Congress (or at least the Minority Leader of the House) to testify in a public setting on a matter of public concern has become a public figure, if for that limited purpose alone, but in any case, it doesn’t matter in the last.

    • 10 Mayor Biggie

      I formed no opinion, if he called her a prostitute and it was declarative, which I think from reading the posts it was not, it would be libelous. Rush rarely if ever apologizes, which means one of two things, one his attorneys think there may be a libel case or more likely he apologized because he is losing sponsors like rats from a sinking ship, which I hear Rush says he doesn’t care about the loss of sponsors. Either way the apology is about money. As to public figure status, that would have to be determined, she is now, but testifying before Congress doesn’t catapult you into the public figure status alone.

      • 11 Pete

        Before a plaintiff can be classified, as a matter of law, as a limited purpose public figure, the defendant must prove that:

        (1) the plaintiff has access to channels of effective communication; CHECK – I’d say nationwide television counts

        (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy;
        CHECK – She requested the spotlight

        (3) the plaintiff sought to influence the resolution or out come of the controversy;
        CHECK – that’s a big duh

        (4) the controversy existed prior to the publication of the defamatory statement; and

        (5) the plaintiff retained public-figure status at the time of the alleged defamation.
        CHECK – that very day

      • 12 Mayor Biggie

        One wonders why you deleted a comment of mine that was not offensive in any way. If you are going to defend the law and note the difference between the protections against government abuses you might also want to embrace the spirit of free speech rather than delete any comment you don’t agree with. You can’t have an open and honest debate when the “moderator” only wishes to hear from those who agree with him. I am sure you can find the delete button for this comment as well Pete

      • 13 Pete

        Mike, what are you talking about?

  6. Besides all of that, left-wing radio and TV commentators have called women much, much worse, especially (but not exclusively) if those women are conservatives with whom they disagree politically. Will the same people calling for the boycott or de-licensing or censorship of Rush call for the same treatment of Ed Schultz, Keith Olbermann, Bill Maher, Chris Matthews, etc., for the savage, hateful, offensive and misogynistic language they’ve used (repeatedly) toward everyone from Sarah Palin and Michelle Bachman to HIllary Clinton and Erica Jong? I’ll hold my breath.

    • 15 Mayor Biggie

      Those examples though are clearly public figures, which is an entirely different animal than unknown grad student picked to testify before congress

  7. 16 Jamy Buchanan Madeja

    Substitute the word “porn” with “liberal” or “anti-government” and then see how this private sector censorship plays out. When distribution media is so closely controlled in so very few hands, free speech is a little like free only to whisper in the dark of one’s own basement.

  8. Perusing the NY Times Book Review which now tracks ebook bestsellers, I noticed that a particular series of erotica, self-published, is burning up the charts. Further “research” made me realize how well self-published erotica is doing on Amazon, including in some of the categories (“pseudo-incest” for instance) that are banned under the new Smashwords/Paypal rules. So my question is, how is it Amazon doesn’t seem worried about the credit card companies? They seem to be cleaning up on this stuff. If it’s not about “morality” than what is driving this. I’m having a lot of trouble believing Paypal was afraid of losing money on porn.

    • On the flip side, Marion, the fact that Paypal didn’t take the position with Amazon suggests that they didn’t do it to the others for ideological or “speech” reasons.

      Since Amazon sells everything under the sun, it would make perfect sense for Paypal to take the hit on the smut books to keep the other 99.9% of Amazon transactions.

  9. 19 daialanye

    Glad to see some sensible analysis on the PayPal incident.

    BTW, I read Small Fish on Authoomy some time back. I believe they reviewed and rejected it with the reasoning that political inside controversy was no longer marketable. Glad to see you put it up on Kindle. At $2.99, I think I’l have the wife pick it up.

    • 20 Pete

      That’s good memory, Dai – but honestly, it wasn’t that quite – it was that it wasn’t enough RISK to carry the story. So I changed things significantly and raised the stakes. Still no violence, though – just the risk of incarceration.

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