Obscene Online but Not Under the Law: How Facebook’s Nudity Policies Are Narrowing America’s Obscenity Standards

Lia Higgins is a J.D. Candidate, 2021 at the NYU School of Law

In August
2019, the Paris civil court brought an end to a year-long battle between
Parisian teacher, Frederic Durand-Baissas, and Facebook. The dispute arose when Facebook terminated
Durand-Baissas’ account promptly after he posted a photo of Gustave Courbet’s L’Origine du Monde (Origin of the World), a closely-cropped painting of a woman’s legs
spread apart to expose her genitals and pubic region. In March, the court ruled that Facebook breached its
contractual obligations by closing the account without prior notice but that
Durand-Baissas was not entitled to damages since he was able to open a new
account and did not provide sufficient evidence that the deactivation had resulted
in a significant loss of contact information for “friends.” More disappointing,
however, is that the court skirted the issue of censorship, failing to address
the Plaintiff’s claim that his account was deactivated
without warning because of the nudity
and sexually explicit nature of the photo he posted. Although the Parisian
court deliberately avoided the matter of artistic censorship, the case raises
significant questions and implications with respect to American obscenity law
in the age of social media. Specifically, how does Facebook’s curation of what
images its users can and cannot see align with the standards embodied in the
three-prong Miller test that defines
obscenity in the United States? Is Facebook’s censorship policies actually
narrowing what Americans, and users elsewhere, interpret as obscene?        

In Miller v. California, the Supreme Court developed a
three-prong test for determining what constitutes obscene material in the
United States. The first prong of the test asks whether “the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest” while the second asks courts
to consider “whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by applicable state law.” The first two
prongs focus on values specific to the community, for example, in which the
work was displayed or distributed. However, the third prong counteracts these
regionalized standards by asking whether “the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value” according to the
reasonable, average citizen of the United States. In turn, the third prong
expands protection for works of art that may be judged as offensive in certain
areas but hold merit on a national scale.

While the Miller
test sets the criteria for American courts to consider in evaluating
potentially obscene materials, Facebook abides by its own policies. However,
these standards appear to be evolving, at least in part, in response to legal
and non-legal outcries against its perhaps overly extensive censorship of its
users’ posts. Facebook’s
community standards state, “Our nudity policies have become more nuanced
over time. We understand that nudity can be shared for a variety of reasons,
including as a form of protest, to raise awareness about a cause, or for educational
or medical reasons. Where such intent is clear, we make allowances for the
content.” While Facebook attributed the deactivation of
Durand-Baissas’ account to his use of a pseudonym, which violated Facebook’s
policies, the timing of the incident in conjunction with the parties’ agreement that Facebook would make an
undisclosed donation to a French street art association, Le Mur, suggest that the image’s content determined the social media
site’s action. Facebook inadvertently addressed the question of sexually
explicit art’s place on Facebook when, after the suit was filed, it modified its policy to state that, “We also allow photographs of paintings,
sculptures, and other art that depicts nude figures.”

Although Facebook’s nudity policies appear to
be developing in response to censorship claims, the site maintains that it
limits the display of nudity because members of its global community might be “sensitive
to this type of content.” With hundreds
of millions of users in the United States
alone, the website has become a significant source of news as well as a
welcomed educational tool on which users can access information through text
and imagery on their feed that they might not otherwise be able to see. Thus,
it is within reason that Facebook would not want to deter its users from
exploring the site’s content by potentially exposing them to offensive and
upsetting images. But Facebook’s curation of sexually explicit works of art may
be limiting the scope of that education in such a way that extends far beyond
the restrictions of the Miller test. In the case of L’Origine
du Monde, the painting
is simultaneously clinically anatomical in its realism and deeply sensual with
its luxurious color scheme highlighting the woman’s provocative pose. It is a
celebration of the female body as well as a tribute to Courbet’s
photo-realistic painting abilities. As such, it would unquestionably withstand
the Miller test but has, somehow,
failed the “Facebook Test.” In removing images
such as L’Origine du Monde and other historically and culturally valued works of
art, including a photograph the Venus of Willendorf, an antique sculpture, Facebook is
not only dismantling its own power to educate but also condemning the artistic
skill that would arguably qualify these works as having value under the third
prong of the Miller test. Although Facebook has taken steps to try to correct the removal of
well-established works of art that contain nudity–by changing its policies and
agreeing to meet with artists to discuss censorship issues–either due to flaws
in the algorithm or by request of its users, images of this nature have
continued to be deleted
from the site.

While it
is clear that Facebook has created more limiting standards for viewership than
what is currently upheld by United States law, the question remains whether it
will significantly alter and, in many instances, regress what its users think
of as artistic skill or patently offensive and prurient. In dictating what its users can and cannot see on their feed, is
Facebook actually creating more restrictive standards and in turn, both
fostering and enhancing the “sensitivity” it seeks to protect on a global
scale? The backlash
against Facebook’s censorship of important works by
the art community and the general population suggest that the cultural norms
shaped by Facebook’s policies would not be able to alter the minds of
reasonable persons so much as to have these works fail a legal obscenity test.
However, it is possible that a
homogeneity in what is considered obscene will emerge as the country–and the
world–continues to be exposed to and shielded from the same content as a result
of Facebook’s policies.