Noir Nation responds to Smashwords and PayPal censorship efforts

According to its Facebook fan page, PayPal has about 316,230 fans. We have no doubt that most of them will accept its explanation about why it censored the words of certain writers who entrusted those words to Smashwords, a publishing platform for independent literary artists.

Our experience has been that most people will die for free expression only if they agree with what is being expressed. Otherwise, they generally follow the moral counsel of columnist Peggy Noonan on how to respond ethically to horrific conduct, “Sometimes in life you want to just keep walking.”

PayPal and Smashwords can certainly count on that kind of response—not a marching to moral responsibility but a walking away from…whatever. There is no groundswell of outrage. Type in “Smashwords” on Twitter and the results are of Smashwords writers proudly marketing their Smashwords books. God’s in his heaven. All’s right with the world.

Then there are those who think this is purely a free market issue. What good libertarian would ever argue that a (purported) publisher like Smashwords or a financial services company like PayPal, must publish or agree to publish what they find objectionable?  Noir Nation believes firmly in free market capitalism. Free markets and a free people. We would never suggest otherwise. But that’s not the issue. Or rather, issues.

The issues, as we see them, are to what extent can a financial services company, such as PayPal, contracted simply to facilitate financial transactions for a client, such as Smashwords, determine what legal products that client may or may not include in its sales catalogue. And the second, what kind of corporate character or its lack—and by character we mean the way Epictetus used the term—would allow a (purported) publisher like Smashwords to claim it could do nothing but whine after PayPal determined what it could and could not publish—while violating wholesale agreements with the Smashwords writers whose works PayPal found offensive.

These are ultimately ethical concerns which, as ethical concerns go, reasonable people may disagree. But there are also legal concerns, very serious ones. Violation of an implied covenant of good faith and fair dealing (Smashwords) and tortious interference (PayPal). But even there, very likely only affected writers would have standing to sue, and even those with the inclination might have difficulty in finding affordable legal representation. That’s not a question of justice. It’s a question of economics.

However, as Ovid reminds us in Tristia, “Acta deos numquam mortalia fallunt,” this spectacle has many observers. And not all of them are willing simply to walk away. Lastly, should you find Ovid’s Latin hard to understand. It’s OK. Ovid’s Roman censors would have wanted it that way.