As I watch the discussion unfold about Paypal’s (a financial company) decision to pressure Smashwords (a publisher) into changing its policy about what kinds of books it can publish, I’ve noticed the mis-use of a lot of terms and ideas. I’m hoping to bring some clarity to the debate with this primer.

First, a caveat about my biases. In law school I directed my energies towards defeating the Communications Decency Act of 1996. Because of that specialty, during the ten minutes that I practiced law, I represented a company whose business it was to verify the age of people who wanted to access adult content on the internet. I am no longer a practicing lawyer, but when it comes to free expression, I am quite nearly an absolutist. That bias may show in this post.

Here are the terms I’ve seen bandied about in this discussion and why they are, or aren’t relevant.

Constitutional Right to Free Speech: The First Amendment of the United States Constitution forbids the government from suppressing the expression of its citizens, with few exceptions. Those exceptions form the basis of vast swaths of case-law, but boil down to the idea that any government intrusion into this area faces a test of strict scrutiny. Hence the government can prohibit someone from falsely crying fire in a crowded theatre in the interest of saving lives, but the government cannot prohibit someone from burning a flag as political expression. American pride in free expression that is at the core of the objections to Paypal’s actions, but Paypal is not a government entity. Consequently, the First Amendment is not directly at issue here. (The argument over whether or not Paypal is an unregulated monopoly, uniquely positioned to have a chilling effect on expression, is a different one. Whether or not Paypal is doing this in response to government pressure or out of fear of government regulation, is currently not known.)

Censorship: Censorship is the suppression of expression. It derives from the ancient tradition of Rome in which censors were elected to purge the Senate of undesirables and watch over the public morality. Sometimes censorship is perfectly appropriate–such as the example of forbidding others to create a panic in shouting fire. Sometimes censorship is not appropriate. Either way, the term has taken on a pejorative implication in our country because we don’t like to think of ourselves as repressed old Romans. Censorship is almost universally legal outside the context of government action. Paypal and Smashwords may not be involved in any wrongdoing whatsoever. Nonetheless, the decision to remove books from the major outlets based on content is a form of censorship, right or wrong.

Pornography: American jurisprudence does not concern itself with the definition of pornography, only obscenity, which I will cover next. Pornography is, by and large, a layman’s term. However, case-law on the whole tends to support the commonly held definition of pornography as the explicit visual depiction of sexual acts intended for the purpose of arousing its viewers. A thin wall between visual representations and written representations has helped to serve as a social boundary to allow for artistic expression within fairly easy-to-understand limits. Many of the objections to Paypal’s policy stem from what is now perceived as a brand new transgression over the social line of detente–from the classification of visual sex acts as pornography to a broadened definition that catches up literature as well.

Obscenity: Obscenity law is one of the least understood and most tortured fields of law in American jurisprudence. Almost all prosecutions surrounding obscenity have had to do with visual depictions of sexual acts, with a few exceptions, some of them famous. Although the Supreme Court declared in Kaplan vs. California that “Obscene material in book form is not entitled to any First Amendment protection merely because it has no pictorial content,” prosecutions brought against books have fared relatively poorly.* The court has never explicitly articulated a reason for the relative difference in legal outcomes. However, some argue that it’s because visual representations of sex acts involve both conduct and the chance of exploitation of real human beings whereas written fiction is not conduct and has not yet been shown to categorically cause a societal harm.

The standard for obscenity was once ‘I know it when I see it,’ but that was eventually replaced by a community standards test. Unfortunately–or fortunately, depending on your point of view–the internet blew apart that legal test. The idea of the boundaries of a community is in flux. The most important recent decision relevant to free speech was decided in 1997, Reno v. ACLU in which the court struck down applying indecency laws to the internet, but indecency is a different standard than obscenity. The internet has since become it’s own community with its own evolving standards, and we’ve had ten years of relative legal silence on the issue.

It is very clear that the appellate courts do not want to spend their time debating the individual merits of either pornography or erotic fiction, and yet, their tests call for just such individual decisions. Some people–including this author–do not believe that government regulation for obscenity is compatible with the First Amendment and that the entire field of law ought to be a relic of the past. Others would argue more narrowly that the ongoing uncertainty in the field of obscenity law leads directly to companies like Paypal making over-inclusive policies to guard against prosecution, thereby resulting in a chilling effect on public discourse.

This is relevant to all of us because if obscenity is based upon community standards, then we are members of the community and our opinions about free expression are vital to the equation. Moreover, to be fair to Paypal, if this move is being made in anticipation of U.S. government regulation, the problem is much more fundamental.

Why Paypal should feel themselves accountable for monitoring the content of the companies for whom they process payments is beyond me. I invite a lawyer with expertise on the matter of third party liability to correct me, but in taking on such a role, they may be exposing themselves to more legal liability than if they took a neutral stance. This might lead some to conclude that either Paypal is seeking to impose a privately held moral stance on their business partners, or, they are seeking to appease governments or entities outside the U.S.

Free Expression: Contrary to what most Americans might believe, the right to free expression exists outside the boundaries of the U.S. Constitution and it is not just a matter of the individual versus the state. In fact, the right to freedom of opinion and expression has been declared to be a universal human right by Article 19 of the Declaration of Human Rights, which says that free expression is, “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

This is relevant for two reasons. It’s relevant because it specifically points out that the right to free expression is a moral issue that transcends governments. It is also relevant because Paypal is a member of a global community, certainly an organ of society, that has proved itself willing to have an influence over global public discourse. The rights and responsibilities of financial industries–especially one as relatively unregulated as Paypal–is a legitimate topic for conversation with respect to their ability to influence the public sphere of ideas.

Article 19 also means that it’s fair for consumers who support Paypal by using its services to question whether or not the arbitrary and capricious enforcement of their policies should subject them to public censure.

Further discussion might include wikipedia’s entry on corporate censorship.

Any other terms or phrases you’ve seen used improperly to the detriment of this debate?

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Updated to Include:

Protected Class: There are certain kinds of people that have been traditionally discriminated against such that the law regards them as protected classes, and laws aimed against them are subject to a higher degree of scrutiny. (ie. the justifications for those laws are vital.) In the United States, protected classes are based on race, color, religion, national origin, age, sex, familial status, disability status, veteran status, or genetics. Sexual orientation–gay, lesbian, transgendered, bisexual, dominant, submissive, were-lover, etc.–is not a protected class, though some people believe it should be. Protected classes are important because discrimination against them can be forbidden even by private actors. This has been brought up with regard to whether or not it would be legal for Paypal to demand the removal of all books about LBGT relationships. I have no expertise in discrimination law, so again, I invite a qualified attorney to correct me, but I believe it would be perfectly legal either because the discrimination would be aimed at literature and not people or because this is not a protected class of people, or both. However, I would point out that just because something is legal doesn’t mean it’s not also wrong. In related news, an author has just filed a gender-based complaint against Paypal with the European Court of Human Rights–which has its own version of protected classes.

Pseudo-Incest: The taboo is strong enough that I hesitated to even post this definition to my site, but I’m going to do it anyway. Why? Because it falls under the kinds of materials that are apparently being removed from online bookstores to comply with Paypal’s new policies. Pseudo-incest is a term used in the erotic literature industry to describe relationships that carry with them a patina of taboo, but do not actually involve a depiction of illegal activity of any kind. For example, an affair between consenting adult step-siblings.

* I don’t mean to imply that prosecutions against written works are never successful. Often pled out early, many of these cases never reach the appellate courts. I simply mean to say that words have fared better than pictures at the Supreme Court.

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Please don’t forget to visit the rest of the hop!