August 10, 2022
The majority of sexually explicit or pornographic content is legal. Thanks to the First Amendment, our right to communicate that legal content is protected, with the notable exceptions of “obscene” content and child pornography.
But though the content itself might be legal—and its distribution constitutionally-protected—things look quite different in the realm of private companies. Under U.S. law, internet platforms can censor content. Social media apps like Facebook and Instagram might ban nudity altogether. (According to Instagram, nude content that shows “sexual intercourse, genitals, and close-ups of fully-nude buttocks” and some “female” nipples would be inappropriate for a diverse audience. Photos of paintings and sculptures depicting nudity are presumably okay, but in practice, art might be censored anyway.)
Paige Collings notes that platforms’ moderation of sexual content renders them “the arbiters of how people create and engage with nude content both offline and in the digital space.” The consequences are stark, and they are felt most strongly by marginalized groups, including sex workers and queer communities. A form of speech is more or less removed from the most popular internet spaces. Users are left without many meaningful options to engage in a critical form of content.
We at Woodhull Freedom Foundation agree wholeheartedly with Collings’ statement that “the system of content moderation is broken—moderation policies are opaque, often arbitrary, and not applied evenly.” Censoring legal sexual content serves to sanitize our understanding of freedom of speech.