Why you can't flash yo titties on Zoom

A very brief history of online censorship and obscenity law

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Ever since I tried (and failed) to find rape porn on Xvideos I’ve been asking everyone why. After all, four in 10 women admitted having rape fantasies in nine surveys conducted from 1973 through 2008. And as I recently read in Tell Me What You Want, what most users described as “rape” fantasies, but what others describe as “consensual non-consent” play, were among the most common BDSM fantasies.

I asked several people who work full-time in online porn or tech policy, and none of them could tell me. So I was super stoked to see the American Sex Podcast tackled the topic of why Instagram keeps kicking you off, TikTok keeps banning your thirst traps, Zoom bans orgies, and you can’t get results for terms like “punish” on porn sites.

Here’s a brief summary of what I learned.

Our story begins in 1973, with a Supreme Court case: Miller v California. Mr. Miller was mailing fliers to people to invite them to visit his sex toy store which prudes complained were obscene. In a 5-4 decision, the Supreme Court upheld that “obscene” speech isn’t protected by the First Amendment. They also defined obscenity with a three-pronged “Miller test.”

Here’s the Supreme Court’s extremely subjective criteria for obscenity:

1. Would the average person using contemporary community standards find the work as a whole appeals to prurient interests?

2. Does the work depict patently offensive sex as defined by applicable state law?

3. Does the work as a whole lack literary, artistic, political, etc. value?

The episode skips over Larry Flynt and the beginning of legal porn. (Fun fact, I live in the Tenderloin neighborhood in SF, where according to the Tenderloin Museum, the first legal feature-length porn film was shown.)

We pick back up with widespread internet during the Clinton administration, and the proliferation of internet porn.

This golden era was followed by George W. Bush, who set up the Obscenity Prosecution Task Force to crack down on internet pornographers.

This leads to the first wave of self-censorship. A lawyer named Paul Cambria who worked for pornographers developed the Cambria List.

This is a list of sex acts you might want to avoid showing in your porn to help ensure you’re not arrested for obscenity.

The list included super benign (and sometimes oddly specific) acts like facials, BDSM, spitting, food play, coffins, blindfolds, wax dripping, etc. It was also racist and heteronormative, recommending against bi sex, two girls sharing a dick, one girl being fingered by two men, and using trans performers.

The Cambria List recommends against white women and Black men. Not interracial. It’s specific.

This is in 2001!

The task force indicted Family Business producer, Seymour Butts. Pornographer Max Hardcore went to prison.

Today, the real choke point for online speech is payment processors. Websites are afraid payment processors will drop them if they come close to violating obscenity laws or don’t fully comply with 2257 requirements (which establish that porn performers are citizens and of age).

So that’s why Patreon kicks off pornographers and Zoom prohibits orgies and Fetlife won’t allow scat play and you can’t pretend to be a vampire while doing phone sex on Niteflirt. It’s the payment processors.

Now, why do the payment processors care? I’m assuming this is Operation Choke Point bullshit.

Violet Blue has done important and brave reporting on PayPal, Square and big banking’s war on the sex industry. No doubt payment processors are fucking sex workers because they’re prudes. But is their sex-negativity really so strong that they’re willing to give up on profits just to stick it to whores and camgirls? That I find harder to believe.

They might be stuck between a rock (customers who will complain or leave because they can’t bear to share a bank with sex workers) and a hard place (the DOJ has promised to investigate banks who serve people in fully legal but disfavored industries with Operation Choke Point).

Of course the net result of this is that people are getting their fix for scat play and rape porn from the black market where it’s far more dangerous. But then, that’s the point.

Obviously, there should be no First Amendment exception for “obscenity.” People shouldn’t have to fear arbitrary prosecutions or getting kicked off their payment platforms because they want to pretend to be a vampire while having phone sex.

It’s upsetting that our Reps are making things worse for online sexual freedom with laws like SESTA/FOSTA and the EARN IT Act. At the very least, we need to make online sexual freedom a litmus test for candidates.