A Crucial Court Case Exposes the Darkness of America’s Worst Industry
Remember the name Serena Fleites—a survivor who has become a hero.
Let me begin with a warning. This newsletter will contain terrible content. It describes a court case that features truly dreadful facts about the porn industry. But it’s important to share. It’s important to understand the reality. And it’s important to understand the character of some of the industry players who stream pornography onto the smart phones and computer screens of tens of millions of Americans—damaging minds, breaking hearts, and destroying lives.
The case is called Serena Fleites v. MindGeek, and on Friday a federal district court judge named Cormac Carney wrote an opinion that should send a shudder throughout the entire pornography industry. Fleites sued MindGeek, the company that owns Pornhub.com, one of the world’s most-visited websites (3.5 billion visits a month in 2019), and she sued Visa, the company that enables Pornhub to monetize its content.
Fleites’s story is horrifying. As recounted by the court, when she was 13 years old, her boyfriend pressured her into making a nude video. Without her knowledge or consent, he uploaded it to Pornhub, where it was posted under the title, “13-Year Old Brunette Shows off For the Camera.”
MindGeek not only hosted the video, it transferred that same video to other websites it owned. As often happens with pornographic videos, it was downloaded and re-uploaded multiple times, and one of the re-uploads garnered 2.7 million views.
Fleites tried to get the video removed. She contacted MindGeek while posing as her mother, told MindGeek the video was child pornography, and demanded its removal. It took weeks for MindGeek to act, and throughout that time the video was downloaded again and again and again.
The video kept being re-uploaded to MindGeek sites, and when it appeared, Fleites would demand that it be taken down again. Fleites claims that MindGeek would do so only if she could “provide photographic proof that she was the child depicted in the video.” Judge Carney was appropriately incredulous. “Assuming Plaintiff’s allegations are true,” he wrote, “the Court is at a loss to understand why such photographic proof was necessary.”
As you might imagine, the existence of the video destroyed Fleites’s life. How is a child supposed to handle such a nightmare? She was bullied and harassed at school, so she started to skip her classes. She battled depression and anxiety, so she self-medicated with drugs. She attempted suicide.
And then another man exploited her. While she was still a minor, he pressured her into making more sexual videos, and he promptly sold them on Craigslist.
A few readers might remember Fleites’s story. Nicholas Kristof featured her in a December 2020 New York Times story called “The Children of Pornhub,” one of the most important news stories I’ve ever read.
Most critical stories about pornography focus on its effects on the men who consume it and on the women who date and marry the men who watch porn. Kristof’s story, by contrast, focused on the unconscionable exploitation and abuse that’s so often inherent in the creation of the content. He described an industry devoid of even the most basic controls necessary to protect girls like Fleites. Here’s Kristof:
Unlike YouTube, Pornhub allows these videos to be downloaded directly from its website. So even if a rape video is removed at the request of the authorities, it may already be too late: The video lives on as it is shared with others or uploaded again and again.
“Pornhub became my trafficker,” a woman named Cali told me. She says she was adopted in the United States from China and then trafficked by her adoptive family and forced to appear in pornographic videos beginning when she was 9. Some videos of her being abused ended up on Pornhub and regularly reappear there, she said.
“I’m still getting sold, even though I’m five years out of that life,” Cali said. Now 23, she is studying in a university and hoping to become a lawyer — but those old videos hang over her.
Kristof’s story brought exposure. Fleites’s lawsuit is about accountability, including accountability for the financial services industry that is indispensable to Pornhub’s existence.
As Judge Carney details, Pornhub makes its money by selling ads on its free sites, by selling the data it harvests from its users, and by offering content on paid sites. Ad revenue accounts for more than 50 percent of MindGeek’s income. Here’s where things get truly chilling:
To reach their intended audience, advertisers can build campaigns around keywords like “13yearoldteen” and “not18”; indeed, they can even target ads to people searching the term “child rape” in Japanese.
While users were uploading videos by the millions (yes, millions), “MindGeek employed a barebones team of ‘as few as 6 but never more than about 30 untrained, minimum wage contractors” to monitor the millions of daily uploads.’” To make matters worse, these workers were paid bonuses based on the number of videos they approved. As the court notes, “Such an incentive structure suggests that content moderation was not the goal.”
I could go on, but I won’t. At some point the facts just get overwhelming. If someone wanted to create a system that was designed to facilitate the distribution of child pornography, vidoes of rape and other kinds of abuse, or revenge porn, it would be hard to construct a more efficient system than MindGeek’s. And the sheer amount of MindGeek’s traffic and the volume of the downloads demonstrates that Pornhub and other sites are injecting poison into American life at an industrial scale.
I’ll give you one more fact—one that should shock the conscience of every decent American. After Kristof’s report, Visa temporarily suspended its business with MindGeek, and MindGeek responded by removing “over 10 million unverified videos from its [sites], constituting over 80% of its content.”
Sit with that for a moment. Over 80 percent of MindGeek’s content was suspect enough to remove.
But Visa soon went back into business with Pornhub and restored its services for both MindGeek’s paid sites and its advertising for all sites. Fleites is now attempting to hold Visa at least partly accountable for her ordeal.
Visa has a strong defense. After all, can it be held accountable for the bad acts of all its vendors? And weren’t there multiple individuals who acted entirely independently of Visa? The ex-boyfriends who uploaded pornographic content didn’t receive funds through Visa. How can the credit card company be held liable?
Fleites doesn’t claim Visa induced her abuse, but she does claim that Visa “knowingly took part in” the “monetization of child porn.” The judge’s response is crucial:
That is where Visa enters the picture in full view, unobscured by the third parties that it attempts to place between itself and Plaintiff. The emotional trauma that Plaintiff suffered flows directly from MindGeek’s monetization of her videos and the steps that MindGeek took to maximize that monetization. If not for its drive to maximize profit, why would MindGeek allow Plaintiff’s first video to be posted despite its title clearly indicating Plaintiff was well below 18 years old? Why would MindGeek stall before removing the video, which Plaintiff alleges had advertisements running alongside it? Why would MindGeek take the video and upload it to its other porn websites?
And when Visa asserts that it doesn’t have any control over MindGeek, the judge has an answer:
But Visa quite literally did force MindGeek to operate differently, and markedly so, at least for a time. And the astonishingly strong response from MindGeek—who is otherwise alleged to stonewall and even harass victims—is consistent with Plaintiff’s allegations that unnamed former MindGeek employees have explained that MindGeek constantly worries that Visa could cut it off and makes decisions based on what content the “major credit card companies are willing to work with.”
To be clear, the judge’s decision doesn’t hold Visa liable for profiting off child pornography. Instead it merely rejects Visa’s attempt to dismiss the case. Specifically, the court found that Fleites properly “stated a conspiracy claim” against Visa under the Trafficking Victims Protection Reauthorization Act (TVPRA). She also properly stated a TVPRA claim against MindGeek. She now has the opportunity to prove those claims in court.
It’s important at this point to remind readers that child pornography is not constitutionally protected speech. Its creation and dissemination is criminal. If Visa ultimately loses its case, it will not be penalized for facilitating or monetizing legal activity. It will be penalized for knowingly monetizing profoundly illegal, abusive, and exploitive behavior.
This is not my normal Sunday French Press—I normally reserve the granular legal analysis for Advisory Opinions or my Tuesday newsletter—but it’s important to lift up the rock on some of the porn industry’s biggest players. It’s important to see exactly how dark that industry can be. And every single person who visits one of those sites needs to know—this is what you subsidize. This is who you empower.
Some of the most powerful and poignant writing in America is coming from young women who live with the consequences of American porn culture. There was Emma Camp earlier this month in the New York Times. There was Christine Emba in the Washington Post, and Helen Lewis in The Atlantic. I still think of this beginning to a Michelle Goldberg column last year:
In her new book, “The Right to Sex: Feminism in the Twenty-First Century,” the philosopher Amia Srinivasan, who is quickly becoming one of the most high-profile feminist thinkers in the English-speaking world, describes teaching Oxford students about second-wave anti-porn activism. She assumes her students, for whom porn is ubiquitous, will “find the anti-porn position prudish and passé.” They do not. Rather, they’re in complete agreement with assertions that could come straight from Andrea Dworkin.
“Could it be that pornography doesn’t merely depict the subordination of women, but actually makes it real? I asked. Yes, they said,” writes Srinivasan. She continues, “Does porn bear responsibility for the objectification of women, for the marginalization of women, for sexual violence against women? Yes, they said, yes to all of it.”
Remember the name Serena Fleites. She is a survivor who has become a hero. I do not know if she’ll prevail in her case. There is a long, long way to go. But if she wins, she has the potential of delivering a shattering financial blow to MindGeek. She has the potential to change the way Visa does business.
And so long as members of the media keep shining a light on her case, she will leave consumers of porn with no moral excuse. There is no justification for subsidizing the deep darkness of the worst industry in America.
One more thing …
This week’s Good Faith podcast is a treat. I spoke to my friend Justin Giboney about political homelessness, racial justice, and how difficult it is to find a home in Team Red or Team Blue. Justin was a 2012 Obama delegate to the Democratic National Convention. I was a 2012 Romney delegate to the Republican National Convention. And yet here we are, ten years later, with so much in common and so much to talk about. Give the pod a listen, I think you’ll enjoy our talk.
And another thing …
If you’re a subscriber to The Atlantic, I highly recommend a piece I wrote Friday—mainly because it’s not about me or my thoughts. It’s about my wife Nancy and her compassion and courage. She spoke at a Christian college about loving her enemies, and a young man said something that drove her from the stage, in tears. It was a terrible moment, until it wasn’t.
One last thing …
Every time I write about tough subjects, including about the sins that destroy so many lives, I want to end with this song and poem. There is no heart that is beyond repair: