And as our literary traditions and fictional experiments move into digital spaces, there are ever-increasing opportunities for third party service providers’ rules to supersede the First Amendment and censor speech. However, while the Constitution may prevent the government from censoring controversial works of erotic fiction, it does not prevent payment processors from shutting off the accounts of legal publishers. While US courts once routinely found books obscene, including many now considered great works, modern jurisprudence recognizes that erotic fiction, even that dealing with taboo subjects, can have serious literary and artistic value, and be protected by the First Amendment. Some of the most respected works of literature in our culture have dealt with issues of rape, bestiality, and incest-works such as Nabokov’s Lolita, numerous Greek myths, and even the Bible.
Literature and art have long provided refuge for exploring a range of human emotions through metaphor, mythology, and fantasy. Questions about what erotic stories are overly offensive or not sufficiently artistic beg for interpretation, and we are concerned that payment processors might be choosing to shut down sites that host entirely legal fiction out of fear of violating these agreements with the upstream providers. Visa and MasterCard’s brand protection rules are subject to a wide range of interpretation. MasterCard’s rules, for example, ban "sale of a product or service, including an image, which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of nonconsensual sexual behavior, sexual exploitation of a minor, nonconsensual mutilation of a person or body part, and bestiality)."
Stripe suspended Nifty’s account because it feared that the bestiality fiction would run afoul of the Visa and MasterCard brand protection rules. In addition to fiction themed around gay, lesbian, bisexual, and transgender issues, a portion of Nifty’s site is dedicated to bestiality fiction. Similar to Smashwords, Nifty Archives ran into trouble because it provides an online space for controversial erotic fiction.
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EFF, National Coalition Against Censorship, and American Booksellers for Free Expression led a coalition of free speech groups in fighting back and successfully convinced PayPal that constitutionally protected fiction shouldn't be censored by third party payment processors. And in February of this year, PayPal threatened to cut off independent e-book publisher Smashwords unless it agreed to stop selling legal fiction that explored issues of rape, incest, and bestiality. In 2011, Visa, MasterCard, and Paypal shut down the accounts of the whistleblower website Wikileaks, creating an unofficial financial blockade against the controversial site even though it had not been charged with any crime. This isn’t the first time we’ve encountered a payment processor occupying the role of Internet censor. Overly restrictive policies can result in removal of speech that the government is prohibited from censoring. This is a victory for online speech and another reminder that third party intermediaries-like payment processors-can serve as the gatekeepers of online speech. After several productive discussions with Stripe, we are pleased to announce that Stripe has reinstated Nifty’s account and will continue to process payments for a website that hosts constitutionally protected speech. After hearing about the suspension, which affected the entire site, not just the controversial contents, EFF reached out to Stripe and urged the payment processor to reinstate payment processing for the site. Stripe initially suspended the non-profit because they believed that some of the content on might violate Stripe’s agreements with Visa and MasterCard. While the content may be NSFW, all of the erotic literature is constitutionally protected speech under the First Amendment.
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Earlier this fall, payment provider Stripe suspended the account of the Nifty Archive Alliance, a nonprofit entity that supports the Nifty Erotic Stories Archive, a free, volunteer-supported website hosting a wide range of erotic fiction for the GLBTO (Gay, Lesbian, Bisexual, Transgender & Others) community.