Porn Censorship & the First Amendment

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Recently, people have been outraged about the new porn ban on the popular social networking site, Tumblr, effective today, December 17, 2018.  Tumblr was one of the last of such sites to allow distribution of porn and nudity.  Because of that, it became a haven for amateur producers, those looking to create erotica, or folks simply looking to explore their (in many cases, marginalized) sexuality.  People in the U.S. are asking though what about the First Amendment – Shouldn’t that prohibit this kind of ban?  Surprisingly to many, the answer is no…

The First Amendment to the United States Constitution recites, in pertinent part:

Congress shall make no law … abridging the freedom of speech….

The operative term there is “Congress,” meaning the amendment pertains only to actions of the United States government.  Social media platforms are owned and operated by private enterprises, and have terms of service that consumers agree to in order to use the sites. Private companies are not subject to the First Amendment, and can therefore, censor what is posted to their websites by third parties as they deem necessary or desirable.

That is how Facebook gets away with its censorship, and how Tumblr can too.

The First Amendment was written way before the emergence of the Internet, and centuries before the advent of social media.  With social media becoming a primary method of communication among the general public, it remains to be seen whether Congress will eventually act to stop censorship on such sites.

The First Amendment applies to government action, but that doesn’t mean that Congress can’t enact laws separately to ban censorship on social communication platforms.  Earlier this year, the U.S. Senate held hearings to investigate foreign (i.e. Russian) efforts to influence domestic elections and political discourse through social media.

The content of the hearings extended to issues including whether companies including Facebook, Twitter, and Google have been silencing conservative voices on their platforms or allowing the dissemination of fake news to interfere with elections.  In an article published by The Washington Post, Senator Mark Warner, the committee’s top Democrat was quoted as saying at a hearing to Sheryl Sandberg, COO of Facebook and Jack Dorsey, leader of Twitter, “I’m skeptical that, ultimately, you’ll be able to truly address this challenge on your own. Congress is going to have to take action here.”

That statement goes to show that if Congress so desires, it could and will regulate restriction of speech on social networking platforms.  Whether Congress would go as far as to prohibit restriction (note the double negative here) of pornography or nudity (i.e. require its allowance) is a grey area to say the least.  It’s especially questionable considering that earlier this year, Congress passed, and President Trump signed into law, the Fight Online Sex Trafficking Act (FOSTA).  As you can tell from the name, the goal of the legislation is to stop non-consensual sex trafficking via the Internet.

FOSTA, however, as written is vague, and therefore, has caused a great deal of fear in companies that operate in the adult (i.e. sexual) social networking space online, as well as social networking in general.  Basically, out of fear of prosecution under this new law, some companies that, for example, facilitate legal, consensual escort services, have completely shut down operations.  Others that have a broader audience have restricted messages, posts, images or anything that remotely sounds like it could resemble sex trafficking or prostitution.  That includes even when the communication is nothing of the sort – Instead, just a victim of an automated keyword filter not intelligent enough to know the difference.

In summary, under U.S. law, Tumblr and every other social networking site is free to restrict adult content as it deems appropriate or desirable to its business model.  The First Amendment is not applicable to how private companies arbitrate speech of third parties on their own platforms.  It is likely that the U.S. government will legislate its way into that arbitration (especially in light of the foreign interference scare), but I believe it’s going be a long time until such would extend to pornography or the like, so keep your panties and nipple warmers on.

On the other hand though, if the government does begin to regulate social media platforms in some way, depending on the wording and spirit of the law, it is possible that that could serve as a basis for a plausible argument that an affected person or entity could rely on in a lawsuit.  This could come in the form of a class action, an organization such as the Free Speech Coalition (the adult industry trade organization) as the complainant, or a private individual as plaintiff.  In the meantime, perhaps someone will bring a suit based on a creative argument such as that social media platforms should be classified as public utilities or something of the like.

Until then, buh-bye Tumblr – Its platform will lose a large base of users now.  The adult industry and its community of consumers are extremely resilient, and I’m certain will soon find another medium to share their wares somewhere else.  Looking forward to seeing you there!

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