Photographer Spencer Tunick Can't Stop Running Afoul of Facebook's Baffling Rules on Naked People
Ron Kuby is Tunick's lawyer; he works on both criminal defense and civil rights cases, and he was the one who got Tunick's lawsuit all the way to the Supreme Court. He points out that while it's completely legal for Facebook to limit nudity in whatever way they choose, it's still a little weird.
"They have the right to do this," Kuby says. "They're not governed by the Constitution. They're not a state actor. They're a private company. There's no requirement that they have to permit one thing and not another. But here, the policy is opaque. It's more opaque than the covering on Spencer's model's nipples."
"We've dealt with this before," Kuby adds, saying that while Facebook may "aspire" to permit artistic, non-pornographic nudity, "they fall far short of it. Facebook has in essence a no-nipple rule, period. For women. Female nipples are dangerous, male nipples are not."
But the interesting issue with Tunick's photographs, Kuby says, "is that the offending body parts are pixelated. In essence, they are clothed. And we're all naked underneath our clothes. So when does it become nudity?" To complicate matters, with the smaller pixels, he says, "you have to look really closely to see that the people are not naked. So, if they merely look naked on the page and you have to carefully focus on small areas between their legs to see that they're not, are they really naked or aren't they? It's almost Zen in its bizarreness."
To learn more about Zen nudity, we spoke with Matt Steinfeld, a very nice, very apologetic policy and communications manager with Facebook. He says that with rare exceptions, photos are only pulled off Facebook after a user reports that photo as objectionable. After someone clicks "report," he says, the photo "is reviewed by a human. We have 24/7 support. There are people in California, India, Austin, Texas, and Dublin. We want to make sure no matter who's reviewing it, it has the same outcome. We don't want people imposing their own values or culture. We want to make sure it's getting the same result. What that forces us to do is impose objective standards."
Those standards, Steinfeld says, were shaped by looking at the rules governing other media platforms, both online and off, including the ones used by outfits like the Federal Communications Commission. "Where we've landed on nudity is, for lack of a better term, private parts would not be permitted on Facebook," he says, with exceptions for things like sculptures and mothers breastfeeding. (The breastfeeding-is-ok rule is new. As recently as 2012, Facebook's content guidelines, which were leaked by Gawker, stated that breastfeeding photos showing nipple were banned.)
What Tunick really wants is some kind of flag on his profile, letting Facebook's content monitors know that his nudity is non-sexual, non-pornographic, and non-exploitative. "I just don't want to be kicked off," he says. "It's so much damn work."
Steinfeld says that Facebook is always reviewing their standards: "One of the things we're always looking at doing is make sure the folks who are reviweing content can take into account as much context as possible. That's an ongoing project. It's not unique to nudity or art."
In the meantime, Tunick still isn't sure which of his images are acceptable. And when he can't show his work on Facebook, he says, it makes it hard to recruit the thousands of models he needs to make new photos.
"My medium is people," he explains. "If I wasn't doing work with people, then I might not even have a Facebook or an Instagram site." In the pre-Internet days, he says, back in the mid to late 90s, "I'd stand on Houston and Orchard and hand out 1,000 printed limited edition black and white flyers," inviting people to take part in a nude shoot. "That was my performance in itself and from that, maybe15 percent of people showed up." If Facebook bans him for good, he may have to take his art back to the corner.