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.