Facebook defines porn these days

In Jacobellis v. 1964 Ohio – on whether the State of Ohio could ban the showing of a film it deemed obscene – Supreme Court Justice Potter Stewart defined hardcore pornography as an unprotected genre by the Constitution, saying, “I know it when I see it.” The film in question, he clarified, was not that. Less than a decade later, in Miller v. California, the Supreme Court developed a three-pronged legal framework for determining obscenity – called the Miller test – based on what an average person would find offensive.

The problem with effectively applying these standards to Internet pornography, even outside of a legal context, is how cyberspace is governed. The spaces in which we interact online are largely policed ​​today by corporations, which generally rely not on some semblance of Miller’s test, but on Judge’s old “I know it when I see it” standard. Stewart. As Rebecca MacKinnon has argued, these unelected “cyberspace rulers” operate without accountability, and often with little respect for our hard-won freedoms.

On today’s Internet, those who make the rules are not elected officials but technocrats – mostly men and mostly Americans. And those who make day-to-day decisions about what we can and cannot see are not judges with years of training, but low-wage workers in outsourcing companies in places like the Philippines. .

Take, for example, Facebook. As a public company, it is primarily accountable to its shareholders. Users are, in a sense, an afterthought; more a product than a customer. The company has created its own set of “community standards” which are intended to be applicable globally. The result is censored: users have been banned from the platform – temporarily or permanently – for having used a name different from that appearing on their identifier; for posting breast cancer awareness campaigns that show a hint of a nipple; even for political discourse.

Under Facebook rules, sexual content is prohibited, as is most nudity (although there are exceptions for famous artwork, photos of breastfeeding mothers, and post-mastectomy images). Photos of shirtless women are prohibited, while photos of shirtless men are acceptable. Notably, the company’s standards do not include the word “pornography”, instead referring to “explicit images of sexual intercourse” and “sexual activity”. However, when users attempt to report such content, their first option reads: “It is nudity or pornography”, along with “sexual arousal”, “sex acts”, and “persons soliciting sex ” as examples listed below.

This amalgamation of nudity, sexuality and pornography seems far more dangerous than pornography itself. The human body is not inherently sexual, and not all depictions of sexual acts are pornography. By bundling pornography with all other sexual content — and bundling sexual content with nudity — Facebook is setting a new standard, far more restrictive than our Constitution, that treats women’s bodies as shameful.

But what about “real” pornography? Certainly, as Judge Stewart would acknowledge, there is a difference between potentially harmful pornographic content and mere nude or even sexualized imagery. Indeed there are, but Internet censors (both human and technical) are rarely able to tell the difference. Facebook, Instagram, YouTube, national governments and internet service providers all routinely fail to distinguish between these types of content. In attempting to ban pornography, these censors too often impose sweeping restrictions that capture far more innocuous content in their nets. In other words, banning pornography is next to impossible unless we are comfortable with collateral damage.

Putting that aside for a moment, there are good reasons to wonder if we should ban pornography. Whatever its potential harm to society, the fact is that Americans consume it in large quantities, which suggests that many accept pornography. According to a Harvard study, Utah residents rank among the top porn consumers. If, by the standards of the Miller Test, we are to judge content by what the average person finds offensive, then pornography with its millions of viewers may not qualify.

In the end, Facebook censors and Utah lawmakers aren’t that different. Both want to impose their own standards on a population that by most accounts disagrees, setting a dangerous precedent for free speech.

© 2016 The Washington Post