Queers, Our Fight is Against Anti-Sex Work Laws
The look of a woman who has just been released from FB/IG detention.
Seems to be a lot of that going around right now.
I received a notification that my accounts had been suspended because of a report that a FB post potentially violated Community Standards against “human exploitation.” By this, they mean content “that recruits people for, facilitates or exploits people” for the purposes of human (read: sex) trafficking.
They don’t tell you what post or content incited the ban; they don’t tell you who reported you. It’s an empty accusation made without the right to face one’s accusers. Partly because the accusers are sometimes the platforms themselves, doing their regular sweeping of our collective data for the purposes of “content moderation.”
The gall of that accusation is nonetheless enraging. As someone whose research, writing, and activism have often been focused on addressing the best possible policy responses to trafficking, it’s insulting. But my anger and cognitive dissonance are also mundane, even pedestrian. People are routinely deplatformed for using words and phrases like “sex” or “sex work,” or for expressing ideas that simply counter the dominant narratives that all commercial sex is trafficking, that trafficking is best addressed through criminalization and abolition of commercial sex. The people being mostly sex workers, women, queers, and people of color.
For those who are blissfully unfamiliar, Meta (FB/IG) routinely suspends, deactivates, or permanently disables user accounts when those accounts are accused of violating the “Community Standards.”
Facebook’s community standards are an ever-growing list of potential breaches, ranging from death threats to spam to copyright infringement. In recent years, however, social media companies have been devoted to strengthening their crackdown on sexual speech and content. There are a lot of complicated reasons behind this pressure, and you can read more about it in Hacking//Hustling’s incredible report on the topic. Suffice it to say that the moral panic over trafficking, spurred in no small part by renewed federal campaigns against commercial sex, has directly led to the suppression and marginalization of sex workers, and increasingly all sexual speech and performance in the public sphere. While SWs are often the first targeted, sex educators, LGBTQI+ people, kinksters, BIPOC people, and anyone who dares to write about or seek sexual information and imagery are also greatly impacted.
Who are You Calling Obscene?
Community standards, of course, echo the terms (and absurdities) of obscenity law. Obscenity law became an important legal instrument in the 19th century, when officials, such as Anthony Comstock, began to prohibit, prosecute, and arrest people for using the US mail for purposes of communicating about or advertising birth control and abortifacients, discussions of free love, and “smut.” Contemporary surveillance of social media platforms echoes earlier attempts to regulate the US mail. Social media functions as a primary communicative medium of our age for better and most definitely for worse.
Obscenity is a mostly empty, shifting, and undefinable category, but for something to be labeled obscene is to be outside the province of the First Amendment, it is to be rightless. Over the course of the 20th century, the judiciary has increasingly extended the right to sexual expression; ruling that some explicit sexual content (pornography) and some modes of sexual performance (such as erotic dancing) are constitutionally protected under the First Amendment.
If you’re confused about what distinguishes constitutionally protected sexual speech, including pornography, from obscenity, you’re not alone. As many scholars, legal experts, and others have pointed out, the attempt to define one from the other frequently devolves into highly subjective, moralistic, and conceptually blurry calls by individual judges. Following the 1973 Miller ruling, the judiciary has largely held to a three-prong test that includes:
· Whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest;
· Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
· Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (the SLAPS test).
Obscenity law cleaves to the laughable idea that there is a clear, stable, and commonly agreed upon notion of “community standards” that can be called upon to adjudicate “prurience.” Many might ask, who is the “average person” in this scenario? The preacher at the pulpit, or the preacher with his hand down his pants later? Which community gets to set the sexual standards? What is the geographic and cultural scope of “community” in a digital, globalized era? In a moment in which we can access porn at home, it can be easy to forget that obscenity doctrine is still called upon to do the work of prosecuting and suppressing sexual speech, under the fear that such speech will lead to “illicit’ sexual conduct. All it takes is political appetite.
Obscenity law, particularly following the Miller ruling, effectively privatizes and domesticates sex, and attempts to keep it out of view. The law has increasingly protected the right of the viewer to privately consume sexual material and the rights of some producers and distributors to sell such material. But obscenity law has always been far more ambivalent about the rights of those performing the grunt labor of sex work, those who create the sexual performance or content to be consumed. Indeed, the greater laxity introduced into obscenity law, the more sex workers have been imagined to be the constitutive outside—partly due to the court’s general suspicion of commercial motivations in the realm of sex and partly due to tired sexist, classist, racist tropes about who can express socially redeeming ideas.
Obscenity law reflects the classist, cis- and heteronormative, patriarchal, and racist norms of the lawmakers and judges –and CEOs, corporate boards, moderators, and AI tech tools—who are empowered to decide whose sexual expression is obscene or not. On social media, community standards license platforms and users with unchecked, potentially retaliatory powers, the likes of which MacKinnon and Dworkin could only have dreamed of (well, maybe MacKinnon).
Proudly Obscene
It's Pride month, and honestly, I’m just so tired of lucid, careful thought pieces linking the attacks on trans and queer communities to the attacks on reproductive rights with nary a nod to the reality that sex workers have long endured criminalization and efforts to chill their speech (or to define them as simply incapable of it). (They are good pieces, and we need them!) However, the legal weaponry of some of these anti-trans and queer campaigns was, in some instances, first drafted against commercial sexual cultures and sex workers.
Indeed, many of the anti-drag and book censorship efforts quite literally cite obscenity law or are addendums to existing anti-adult entertainment policies.
(More on this coming soon).
Queers, our fight is against anti-sex work laws. Queers will never be free and powerful in this country until we decide to be adamantly and directly opposed to the criminalization, surveillance, and aggressive regulation of commercial sex, people engaged in it, or those merely suspected of engaging in it.
At some point, I hope we realize that we must collectively find ways to resist efforts to infantilize, desexualize, or otherwise “cleanse” the public sphere. Including the poor excuse for a public sphere that we call social media.
#HappyPride