In the blink of an eye, former President Trump was gone from social media. Facebook and Twitter suspended his accounts for violating their community guidelines. His opponents cheered and his supporters raged. But some in the adult entertainment industry were all too familiar with the feeling of waking up one day to find that your popular social media account has been cancelled. Some large adult website accounts have been booted off mainstream social media sites without notice. Numerous adult performer accounts were cancelled because they were associated with sex work. Still others were shadowbanned without their knowledge until they realized their influence had been throttled by their favorite online platform. These actions are often taken without warning or meaningful opportunity to appeal. A nameless, faceless person had decided that they stepped over a dim and uncertain line into “offensive” content. Current federal law, namely Section 230, allows for this type of content moderation without any practical legal recourse.
The banking system has its own version of deplatforming. By denying payment processing or deposit accounts to those in the adult industry, financial service providers can starve out controversial speakers, forcing them to rely on alternative currency such as Bitcoin or paper checks. One of the largest online adult platforms recently found itself without any payment processing services in the wake of some negative press reporting about third party content uploads.
The most extreme form of deplatforming took place when the social media site Parler found its app not only removed from the Google and Apple app stores, but cut off from access to the Internet backbone by Amazon Web Services. While this platform termination received much media attention, it was not the first time that a social media site had been denied access to Internet architecture. Social media site Gab.com was taken offline in 2018 after losing its payment systems, hosting company, and domain registrar after a user was allegedly involved in a mass shooting. Cloudflare took down sex worker platform Switter in April 2018, in the wake of the passage of FOSTA. Neo Nazi site, Der Stormer, lost online hosting and proxy server protection in February 2018, causing it to go dark in the wake of public pressure. While many celebrated the cancellation of platforms like Der Stormer, Gab, and Parler, the swift censorship of offensive yet largely constitutionally protected expression left many free speech advocates feeling uneasy. If this could happen to one form of controversial speech, what stops these private actors from stamping out any other?
As many in the adult industry have learned, they need more than First Amendment protection of their expression to do business. They require the permission of numerous private companies to allow their content to be disseminated to a worldwide audience for compensation.
In the 70’s, during the era of Deep Throat and Behind the Green Door, distributors handed 16mm tape reels to theater owners in exchange for cash. There was no middleman who could decide to stop the show – other than the government. During this time, the courts developed what is now widely understood as constitutional protection of sexually-explicit speech. A prior restraint on speech is unconstitutional. The government must go to court and bears the burden of showing that erotic material is obscene, and therefore illegal. Any licensing regime for speech must include specific procedural safeguards to ensure that decisions are made in in a brief, specified time period, and decisions must be subject to prompt judicial review. The courts were trusted to ensure that decisions to censor or restrain speech would not violate the First Amendment or be based on arbitrary reasons.
Contrast this with the current environment which allows vast censorship of speakers, or even entire platforms, with a few button clicks by private actors. With enough public pressure, your social media platform, your host, your domain registrar, and your bank can decide they’ve had enough and “disappear” your online presence. Maybe you’ll get a warning, maybe not. Terms of service agreements with online service providers, processors, and banks are notoriously friendly to the provider, and allow for wide discretion in these decisions. Reversal of these actions is extremely rare. Lawsuits are expensive, time-consuming, and usually unsuccessful in these instances.
The solutions to these problems are complex, but some steps can be taken to protect yourself from deplatforming. First, know the rules. Learn what content is allowed on social media sites, and what will get you banned. This requires more than reading community rules and guidelines. Each platform has its own risk tolerance level. Study the type of content that is accepted and commonplace on the platform – particularly in your specific niche. Ask other users and learn from the mistakes of those who have violated the rules. It’s easier to stay out of trouble than to get out of trouble.
Do business with service providers that are adult-friendly. Your host, payment processor, accountant, attorney, and other service providers should have many other adult customers, so they understand the industry and won’t be scared off at the first sign of trouble. Some providers have been around the industry for decades, and understand the unique issues facing adult entertainment. Those relationships are invaluable.
Backup your follower list and have an alternate method of contacting them in the event of a problem. Attempting to recreate a list of fans or subscribers after your access has been terminated is a losing battle.
Diversify your options. If you are a performer, maintain accounts on numerous platforms so termination of one account will not force you offline completely. Website operators; maintain relationships with several hosts, payment processors, banks, and registrars. There may come a time when you’ll need to move business.
Become conversant in alternative currency. The adult industry is almost entirely reliant on credit card transactions. While cards are simple and widely accepted, this represents a vulnerability. Encourage users to establish virtual currency accounts, offer discounts, and provide information about these types of transactions. The less reliant the industry is on mainstream financial services, the more protected it will be from arbitrary termination decisions.
Finally, fight back against false narratives with facts. For many years, the adult entertainment industry was winning the War on Porn. The lies and deceptions used by eroto-phobic censors had been exposed and human sexuality was largely celebrated. But we have entered a new era. Opponents of erotic expression have distorted the perception of adult entertainment by conflating it with prostitution and sex trafficking. This intentional blurring of the lines has caught fire and resonates with those who have convinced themselves that sex workers are victims who need saving. Speak truth in the face of misinformation. Finally, defend speech with which you strongly disagree, against these deplatforming efforts, to ensure that your own voice will continue to be heard.
Lawrence Walters heads up Walters Law Group which has represented the adult industry for over 3 decades. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.