A new policy instituted by PayPal, an offshoot of eBay, has prompted online self-publishing service Smashwords to revise its terms of service and has sparked calls of censorship from a diverse group of organizations representing publishers, writers, and Internet advocates. On February 18, according to a Reuters article reprinted in today’s Globe and Mail, PayPal sent a letter to Smashwords founder Mark Coker indicating that access to PayPal services might be “limited” should Smashwords continue to host writing that featured “obscene” content, including incest, bestiality, “underage erotica,” or “rape-for-titillation.”
In response, on February 24, Coker sent a letter to all “authors, publishers, and literary agents who publish erotica at Smashwords,” redefining what is and is not allowable for publication. According to the letter, prohibiting “underage erotica” is “not a problem” for the administrators of Smashwords, even though a strict reading of this term would disallow Nabokov’s Lolita. Similarly, Coker writes, “We do not want books that contain rape for the purpose of titillation.” This sounds reasonable, although it would arguably prohibit the works of the Marquis de Sade and the pseudonymous erotica of Anne Rice. Bestiality is also a no-brainer, although Coker is quick to clarify that “this does not apply to shape-shifters common in paranormal romance provided the were-creature characters are getting it on in their human form.” So the Twilight crowd can breathe a sigh of relief. Whether Marian Engle’s novel Bear would pass muster is another matter altogether.
Only when it comes to incest does Coker acknowledge the “slippery slope” that is created when one starts to set artificial boundaries on imaginative works:
The legality of incest is murky. It creates a potential legal liability for Smashwords as our business and our books become more present in more jurisdictions around the world. Anything that threatens Smashwords directly threatens our ability to serve the greater interests of all Smashwords authors, publishers, retailers, and customers who rely upon us as the world’s leading distributor of indie e-books. The business considerations compel me to not fall on the sword for incest. I realize this is an imperfect decision. The slippery slope is dangerous, but I believe this imperfect decision is in the best interest of the community we serve.
Meanwhile, the Reuters article indicates that a number of groups, including the Electronic Frontier Foundation, the Authors Guild, the American Booksellers Foundation for Free Expression, and the Association of American Publishers have signed a letter protesting PayPal’s new restrictive policies:
PayPal “is now holding free speech hostage by clamping down on sales of certain types of erotica,” the groups said, according to a draft of the letter sent to Reuters. “We strongly object to PayPal functioning as an enforcer of public morality and inhibiting the right to buy and sell constitutionally protected material.”
They are right and they are wrong. The American constitution only protects speech that is infringed by the government; it does not protect speech that is infringed by private enterprise. PayPal is perfectly within its rights to decline any transaction it sees fit. Writing on the Electronic Frontier Foundation blog, Rainey Reitman elucidates this point:
Frankly, we don’t think that PayPal should be using its influence to make moral judgments about what e-books are appropriate for Smashwords readers. As Wendy Kaminer wrote in a forward to Nadine Strossen’s Defending Pornography: “Speech shouldn’t have to justify itself as nice, socially constructive, or inoffensive in order to be protected. Civil liberty is shaped, in part, by the belief that free expression has normative or inherent value, which means that you have a right to speak regardless of the merits of what you say.”
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 [sic] particular books, PayPal can choose to cut off services to e-book publishers that don’t meet its “moral” (if arbitrary and misguided) standards.
When Heather Reisman decided that her chain of Indigo bookstores would no longer carry Mein Kampf, people who wanted to access the book simply went elsewhere. One problem with PayPal’s move is that they are, if not the only game in town, at least the most visible and influential. Their new mantle as moral arbiters of what gets published online may be legally sound, but it sets a dangerous precedent in what should be a free and open marketplace of ideas.