[content warning: discussion of stories about abuse, child porn, porn of teenagers]
I’ve gotten into a fair number of conversations recently about AO3’s way of dealing with controversial fanfics (i.e. you can use the standard archive warnings so people don’t have to see stories with rape or abuse or underage sex in it, but the moderators don’t delete fanfics), so I thought I should write up my thoughts on the subject.
Legal Issues
One controversial aspect of Archive of Our Own is the fact that they permit stories about underage people having sex with each other, which many people believe to be illegal in the US. Please note that I am not a lawyer and may have gotten many details wrong; I welcome corrections.
The current law which applies to child porn in the US is the PROTECT Act of 2003. Under the PROTECT Act, computer-generated child porn which is indistinguishable from a child is illegal, as are obscene drawings, sculptures, and photographs that depict underage people. Writing stories about underage people having sex is not illegal in the United States, so the vast majority of Archive of Our Own’s content is legally in the clear.
However, AO3 does occasionally host fanart, some of which may involve minors. Is that illegal? It’s unclear.
The Child Pornography Prevention Act of 1996, the previous law about child porn, was judged unconstitutional in Ashcroft v. Free Speech Coalition because it made illegal non-obscene visual depictions of minors having sex. The Supreme Court pointed out that this included Romeo and Juliet, and that it was generally a bad idea to make Shakespeare plays illegal; you can’t ban a bunch of protected speech because you don’t like it. However, the PROTECT Act only criminalizes obscene visual depictions of minors having sex.
A work is obscene if it fails the Miller test:
- An average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.
- The work depicts sexual content in a patently offensive way.
- The work, taken as a whole, lacks serious artistic, literary, political, or scientific value.
So are the depictions of minors having sex on AO3 obscene? It’s unclear to me. There have been legal cases in which people have been prosecuted for cartoon child porn. However, many of them end in a plea deal, which means we don’t have evidence about how a judge would rule. So I think this is a gray area legally. (I have absolutely no legal grounds to support this, but I suspect the typical underage fanart on AO3– which depicts people who are canonically in high school but physically adult and often in canon played by adult actors– is going to be a lot less controversial than the lolicon that most of the case law is about.)
Should AO3 Delete Controversial Works?
I think that AO3 will not be able to delete controversial fanfics in a way that remotely satisfies the people asking them to do so.
First, AO3 is run by volunteers, which puts a limit on how much manpower they can devote to deleting controversial fanfiction. Fanfiction.net, a similar website, bans porn, but it’s not exactly difficult to find porn on Fanfiction.net. By eliminating tagging and incentivizing fanfiction writers to hide the content that might get deleted, it simply increases the likelihood that people who don’t want to see rape or abuse will see it anyway.
Second, there’s an enormous judgment problem with deleting fanfiction. Both broadness and narrowness have serious failure modes.
If your rules are too narrow, people will rules-lawyer their way around them. For instance, the website Literotica has a rule that all characters must be over the age of eighteen. Naturally, there are an improbable number of eighteen-year-old high-school students, and quite a lot of porn in which the lollipop-licking, pigtailed protagonist who doesn’t know what sex is mentions in the first paragraph that she’s eighteen. Obviously, this is not a satisfactory solution for people who don’t want underage porn to be written.
If your rules are too broad, a lot of things become judgment calls. I’m going to talk about something that’s a lot more clear-cut than abuse: one person I’ve talked to suggested that it’s homophobic to ship heterosexual ships with canonically gay characters, and that Archive of Our Own should remove such fanfic. This seems pretty simple: “is this character gay?” definitely seems a lot easier to figure out than “is this relationship abusive?”
So: what do we do about Willow? There is a loud and angry contingent of Buffy fans who believe that Willow is a lesbian who dated a man in high school because she hadn’t come out to herself yet, as many lesbians do. There is an equally loud and angry contingent of Buffy fans who believe that Willow is bisexual because of her obviously loving relationship with Oz, and that Joss Whedon has never heard of the concept of ‘bisexuality’. If you say Oz/Willow is homophobic, you going to get a bunch of people calling you a biphobe, and if you say it isn’t homophobic, you’re going to get a different bunch of people calling you a lesbophobe.
What do we do about Margot Verger? Margot is canonically a lesbian, but she also canonically has sex with Will Graham in order to conceive a Verger heir so that she can murder her abusive brother and get his inheritance. Will we delete fanfiction that explores the implications of something that happened in the show?
Or what about Messala from the movie Ben-Hur? According to the documentary the Celluloid Closet, the director intended Ben-Hur and Messala to have been in a gay relationship; he told the actor playing Messala, but did not tell Charlton Heston, because Charlton Heston was a homophobe. In that case, it’s difficult to tell if Ben-Hur and Messala were even in a canonical gay relationship, much less whether Messala is canonically gay himself. Wait, is it ahistorical to characterize someone as “canonically gay” in a time period with such a different understanding of sexuality? Okay, everyone, get out your Foucault and Halperin, we’re going to have to resolve one of the most fundamental arguments in queer theory before we can figure out which slash fic we’re going to delete…
And frankly “is this character gay?” is much easier to answer than “is this character in an abusive relationship?” A lot of abuse is subtle and contextual. Sometimes abusers call their partners names. Sometimes people’s preferred way of conflict resolution is shouting mean things at each other, and while that certainly isn’t what I’d prefer, these relationships can be perfectly happy and functional and the people involved can resolve their conflicts to their mutual satisfaction. Whether a scene in a story is an instance of the former or the latter is often very unclear, and different people can interpret it differently.
And you can’t trust that these judgment calls will be made in the way you prefer. The whole reason we’re having this discussion is that fandom, in general, has its head up its ass about what ‘abuse’ is. On Archive of Our Own, stalking, sexual coercion, and wildly unethical power dynamics are regularly depicted as romantic without so much as a warning. Even coffeeshop AUs, which are notoriously fluffy, light-hearted, and angst-free, regularly depict workplace sexual harassment– often to the point that it would be an EEOC violation in real life. If Archive of Our Own set about trying to delete all the abusive fic, the deletions would be made by the exact people who keep putting sexual harassment and stalking in all their light and fluffy fanfiction. I do not really trust this to have a positive outcome.
And then there are the people who think that all BDSM is abuse, and I don’t even want to know what trans-exclusive radical feminists would do with the ability to delete all femmeslash with a trans character on the grounds of being homophobic…
I think a much better strategy for people who want to reduce the rate of abusive relationships in fiction is attempting to convince others of their beliefs. This has been successful in the past: for instance, the We’re Not Gay We Just Love Each Other story genre has almost been eliminated. That happened because a lot of people wrote essays along the lines of “it is really fucked up and homophobic to think that men can’t be attractive and masculine if they’re gay, and also the word you’re looking for if someone is attracted to women and men is ‘bisexual’.” If you want people to not write fic in which workplace sexual harassment is depicted as romantic, I think it’s going to be a lot more effective to try to convince people than workplace sexual harassment is not romantic than it is to get those fics deleted.
Thing of Things 
Jesusfuck. Actually raping an actual woman – six months in jail. Jerking off to a cartoon – 20 years. People writing CP laws are crazy.
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Worse, they are perfectly rational in their response to election pressure.
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Some cartoons include modified photos and that SCOTUS has agreed can be banned.
Also even though SCOTUS did rule that computer generated child porn is protected if the defendant didn’t preserve this issue (say because the original case occurred before the supreme court ruling) he could still end up in prison.
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Not sure what happens if they are pure cartoons but use genuine children’s voices either.
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Ignore my earlier remarks. I missed the key point that this was a GOVERNMENT OWNED computer.
The government has much greater power to regulate speech made using government property or on government time. So yah don’t use government computers to view even animation.
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If we’re going to be banning things we dislike, I would ban every single bloody coffeshop AU in every fandom ever; not for obscenity but because they’re so overdone. However, I don’t get to be Global Censor and neither does anyone else.
I think a lot of this is because the current generation are very young, have little to no idea of fandom history, certainly weren’t around in the days of webrings never mind the Great LiveJournal Debates and have very passionately fixed their identities as being completely right about everything that could possibly be problematic and hence are so impassioned about Stopping The Bad Stuff.
This arises out of a good impulse (wanting to be on the right side of history and wanting not to cause harm) but it goes into a very bad expression, because they’re infatuated with the idea of activism and online activism seems so cool, so easy and so effective. They haven’t learned the hard way to be tolerant because they haven’t had to be tolerant of others because if we don’t all stick together we’ll get nothing. And of course being young, they have the same impulse every fresh generation has: that they invented sex, that nobody else has ever felt or thought this before, that there are problems in the world and why isn’t anybody doing something about them?
They have to learn, though, that things are complicated, that yes tolerance means putting up with stuff you personally don’t like and it doesn’t matter if you’re the most progressive snowflake in the pile, you still have to tolerate it, and that you cannot impose morality.
So I try to understand their impulsiveness before I start yelling “you kids get off my lawn!” 🙂
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>If you say Oz/Willow is homophobic, you going to get a bunch of people calling you a lesbophobe, and if you say it isn’t homophobic, you’re going to get a different bunch of people calling you a biphobe.
I think you got “lesbophobe” and “biphobe” switched around, since if you think that the Oz/Willow relationship is homophobic you’re pro-lesbian!Willow and if you think it’s not homophobic you support bisexual!Willow.
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“If you say Oz/Willow is homophobic, you going to get a bunch of people calling you a lesbophobe, and if you say it isn’t homophobic, you’re going to get a different bunch of people calling you a biphobe.”
I think this might be reversed.
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It seems insane that protecting queer people’s right to exist requires policing other people’s erotic imaginations to make sure that they don’t get turned on by Oscar Wilde/Mary Benson erotic fanfic.
Or to put it another way:
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These are good arguments that censoring AO3 would be infeasible. But even if it were perfectly feasible to sort the problematic from the unproblematic, censorship would still be wrong. I worry that making the argument that censorship is infeasible cedes too much ground.
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I disagree that refusing to host certain stories would be censorship. There is no freedom-of-expression right to post your stories on a particular fanfiction archive. It is not censorship for Fanfiction.net to ban porn and MST3Ks, for the Sugar Quill to refuse to host Harry/Hermione fics, for the Library of Moria not to host het, or for an X-Files fanfiction archive to not host stories about Disney.
(That said, for historical reasons the Archive itself is supposed to be maximally inclusive.)
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There should be a word for “restricting speech based on content, but is not a government” so we can discuss whether it’s a good idea/morally right, etc.
I mean, it’s totally true that if twitter says no pro-communism discussions or your dinner party host says no politics or MyFitnessPal says no pro-anorexia posts on their forum, that’s not censorship, but it’s something, and not having a word for it makes it hard to discuss.
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There is not and should not be a legal right, but there is certainly a moral right. The Purpose (telos) of a fanfiction archive is sharing fanfiction. A website that claims to be a general fanfiction archive, but is censored, is a corrupt and monstrous pretender, because censorship is directly at odds with sharing fanfiction. (And that *is* the correct word; “only censorship when a government does it,” is Randall-Munroe-tier.)
This is exemplified by Literotica, which you commented on. Restricting the content of fantasy erotica is antithetical to the telos of fantasy erotica. The “totally eighteen mmm-kay?” disclaimers break suspension of disbelief and make it impossible to take much of what is published there seriously.
There is, of course, a continuum. On one end, you start with unquestionably okay forms of curation, like lists of fanfics recommended by so-and-so, through the trivially okay like topic-specific forums and fanfic collections focusing on particular pairings or aesthetics (Sugar Quill, DLP, etc.).
Then you get into curation that can be criticized on the basis that it is very silly. Christian-friendly search engines and the like. This stuff isn’t morally wrong, but it is laughable.
On the far end, you have Actual Censorship. The key features you usually find are 1) some kind of claim that censored content is morally wrong or harmful, and/or 2) the presentation of the censored feed as something for general consumption, rather than as a niche product. The common theme is that censorship is expansionist.
You may notice that this rubric puts the standard practice of commercial-spam-filtering under the umbrella of censorship, except when it is filtered on the basis of being off-topic in a topic-specific forum. This is not a mistake. This kind of censorship is acceptable, but it does require very careful consideration. Even if they define away private censorship, most of the only-governments-can-censor people still want the government to censor nuclear secrets and Actual Child Pornography. So they cannot escape having to make a moral case for some censorship.
It’s fine to point out that censoring only “problematic” stories would be impractical, or that some people use “problematic” fantasies to cope. Defense in depth is good, after all. But if it should turn out that censoring is easy, and that the only people writing and reading Harry Potter/Gabrielle Delacour are neckbearded men using it to masturbate, that should not undermine our conviction that censorship is wrong. Free speech is a sacred value. “The primary thing is to cut the enemy,” and all that.
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P.S. I was kind of under the impression that FF.net banning MST3Ks was due to copyright law concerns, in which case that censorship should be blamed on the US government (or whatever the relevant jurisdiction is).
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SCOTUS has ruled on this matter holding that virtual (i.e. computer rendered) child porn was protected under the first amendment and could not be legally banned or criminalized. SO THERE IS NO QUESTION THAT STORIES OR DRAWING THAT DEPICT CHILDREN SEXUALLY IS CONSTITUTIONALLY PROTECTED
Of course that doesn’t stop congress from passing laws which claim to ban more than that but the courts won’t enforce them.
(Someone with more time/legal knowledge than me would have to work out exactly what the situation is with visually indistinguishable child porn generated by a computer. I’m pretty sure the government doesn’t need to show beyond a reasonable doubt it is a genuine photo but whether that means being computer generated is an affirmative defense or what is unclear to me).
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Also as I mention above if the images have a photographic base (e..g they take a picture and modify it) they can be banned. How this applies to cartoons VOICED by children is unclear. Also see comment above on how this can be squared with some of the results posted in other cases.
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I should add that this material can be illegal in Australia and the UK.
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Alright as to the actual content of this post:
Seems to me it is actively HARMFUL to even try and convince authors/readers/etc.. not to write about abusive relationships.
There is a ton of scientific evidence that sexual fantasies about rape and other sexual encounters that would be wildly inappropriate/bad in the real world are common to the point of being nearly universal. This isn’t restricted to sexual content either. Go watch any action TV show and the protagonists use deadly weapons in situations that would be outrageous in real life. Other common themes involve expressing frustration with work/boss in ways that would amount to harassment (if not outright assault) in real life.
So currently people don’t tend to infer that merely because you enjoy/support some particular work of fiction you approve of the behavior depicted therein.
But if you start insisting that you can’t have fiction depicting X or Y sexual situation because it is abusive or because in real life it would amount to rape/assault/etc.. your implicitly saying that those fictions you support/like depict acceptable ways to act. Even mainstream media depicts situations that are hot in ways that shouldn’t be emulated in real life and unless you eliminate fiction all together you’ll never convince everyone to watch only hookups that would be consensual if they happened in the real world.
Seems to me we are in a much better situation if we all just agree that works of fiction don’t represent normatively desirable situations than if we try to insist they do and thereby communicate that less extreme abusive/non-consensual behavior is ok because it appears in widely accepted fictions.
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Now there are other (better) arguments against having children engaged in (adult aimed) sexual depictions. One might think it encourages interest in children sexually and increases child abuse.
Then again it might satiate those interests and reduce demand for true child porn or child molestation. Having it availible from mainstream sites means there is less incentives for fans to go peruse the worst parts of the dark web thereby encountering (and building sympathy/community with) child abusers and other bad actors.
Absent actual evidence I don’t think we are justified in assuming it is net harmful because we don’t like it. If you really care about this issue you should probably gather that evidence and find out (if it is bad it would be a less troubling justification to remove it from private servers…though I still think not a reason to outlaw it because of slipperly slope concerns).
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P.S. The idea that 18 is some magical age is a US cultural quirk. Even if we think that is the best place to place age of consent laws we should admit that other developed countries (UK) place it at 16 and that it is natural and normal for people to sexually fantasize about young but post-pubescent individuals (even if in our social order it would be bad to actually try to sleep with them).
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18 is not the age of consent in most US states. It’s just the highest of any state AOC law, which means that the number is bid up to 18 so that content can be shown outside of specific states.
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Interestingly, there’s a “We’re not gay we just love eachother” Spoonkara horror fic, although there’s some confused rambling before settling on using hetronormative?
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Ao3 doesn’t “host” fanart, they allow users to insert links to images, which are hosted on other sites. This seems like a triviality, but is a very important legal distinction.
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