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 Bookstrand.com and smashwords.com, and at least one other venue for erotic content, excessica.com) 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?
Filed under: law and fiction | 20 Comments
Tags: censorship, erotica, first amendment, paypal, pornography