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. While the content may be NSFW, all of the erotic literature is constitutionally protected speech under the First Amendment.
Stripe initially suspended the non-profit because they believed that some of the content on Nifty.org might violate Stripe’s agreements with Visa and MasterCard. 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. 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. 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. Overly restrictive policies can result in removal of speech that the government is prohibited from censoring.
This isn’t the first time we’ve encountered a payment processor occupying the role of Internet censor. 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. 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. 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.
Similar to Smashwords, Nifty Archives ran into trouble because it provides an online space for controversial erotic fiction. In addition to fiction themed around gay, lesbian, bisexual, and transgender issues, a portion of Nifty’s site is dedicated to bestiality fiction. Stripe suspended Nifty’s account because it feared that the bestiality fiction would run afoul of the Visa and MasterCard brand protection rules. 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)."
Visa and MasterCard’s brand protection rules are subject to a wide range of interpretation. 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.
Literature and art have long provided refuge for exploring a range of human emotions through metaphor, mythology, and fantasy. 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. 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.
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. 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.
To be clear, payment providers as well as other intermediaries have their own First Amendment rights not to carry speech with which they disagree. But we believe that intermediaries—like ISPs, registrars, payment providers, search engines, and even platforms for user-generated content like Facebook—are most valuable when they serve as neutral platforms. Online speech is dealt a serious blow when these intermediaries choose to actively censor controversial content. Worst of all, censorship by these private actors isn’t subject to judicial appeal; terms of use typically give these intermediaries the right to shut down any account at any time for any reason.
We’re glad to report that Stripe reinstated Nifty and has adopted a policy that upholds constitutionally protected speech. Like PayPal earlier this year, Stripe was willing to change its policy to ensure that legal fiction was not censored. We hope that other online intermediaries will adopt similar stances when it comes to permitting legal fiction.
Note: EFF has recently started using Stripe as a payment processor for our donations.
