There May Be Casualties, But the War on Porn Will Fail

There is a great deal of concern among members of the adult industry right now about a War on Porn.

The “good news,” such as it is, is the above sentence is something I could have written at any point in my 23 years in the adult industry and it would have been just as true as it is today. For that matter, the War on Porn was at its most intense and focused in a 12-year period that ended before my time in the industry began, during the second half of the Reagan Administration and the one term of George H.W. Bush’s tenure in the Oval Office.

While there has been a smattering of federal obscenity prosecutions undertaken since the end of the first Bush Administration, federal enforcement of obscenity laws peaked in the Reagan/Bush years and we simply haven’t seen a comparable appetite for such enforcement in the intervening decades and Administrations.

While I don’t want to understate the dangers the adult industry faces right now from the latest offensive in the long, uneven campaign against adult entertainment being waged by governments, private companies, activists and elements of the media, I’m confident the adult industry will survive it.

Note that I didn’t say the adult industry will “prevail” in the War on Porn. This is one of those wars in which there can be no foreseeable winner, because there is no foreseeable end. In this sense, the War on Porn is much like the U.S. government’s other quixotic wars on drugs, terrorism, poverty, or any of the other nouns on which the government has declared war over the decades.

Why am I confident the government and its allies won’t crush the adult industry, or even significantly impair its ability to function? For starters, there’s the First Amendment and how the courts have interpreted it over the years.

In 1996, Congress passed the Communications Decency Act, its first real attempt to regulate online pornography. That attempt largely went down in flames, with the Supreme Court unanimously finding that the “indecent transmission” and “patently offensive display” provisions of the CDA violate the First Amendment.

When the Child Online Protection Act passed in 1998, it too had the potential to seriously stunt the growth of the adult internet while the sector was still in its infancy. Instead, the courts enjoined enforcement of the law, first temporarily in 2000, then permanently in 2009.

While I don’t see much threat to the industry in proposals like the Stop Internet Sexual Exploitation Act (“SISEA”), mostly because I’m confident it would fail under court scrutiny as COPA and the CDA did before it, it is part of a larger framework and effort that is still very troubling.

Ironically, the one part of the CDA that did survive court scrutiny is now at the heart of the latest concerning developments in the War on Porn: Section 230. As sex workers and their advocates have repeatedly noted, FOSTA/SESTA weakened Section 230 to the detriment of both sex worker safety and their ability to earn a living, and if it Congress repeals or amends Section 230 further, it will do more damage along those same lines.

Since the desire to amend or repeal Section 230 is bipartisan, not to mention favored by both our outgoing President and incoming President-Elect, I see it as the most likely “casualty” in the War on Porn, albeit a tangential one, as few who are arguing for its repeal cite a proliferation of online porn as impetus for their demand. (Instead, we hear a lot of grousing about social media censorship of conservative views, or complaints that various companies aren’t doing enough to limit the flow of misinformation on their platforms.)

Another troubling development in the War on Porn has less to do with the government than the private sector and the media. When Visa and Mastercard abruptly ceased handling transactions for Pornhub, the decision followed a critical opinion piece written by Nicholas Kristof for the New York Times.

I think it’s fair to say the adult industry at large braced itself for a cascade of similar moves by the credit card companies, out of concern that what had just happened to Pornhub would soon happen far and wide, making it far more difficult for content creators, studios and site operators to bill their customers and generate revenue. Since then, however, instead of the processing ban spreading to other adult sites, Visa has partially relented in its revocation of MindGeek’s billing privileges, as reported by CNN.

“Following a thorough review, Visa will reinstate acceptance privileges for MindGeek sites that offer professionally produced adult studio content that is subject to requirements designed to ensure compliance with the law,” Visa said in its statement to CNN.

From where I sit, it sounds like Visa’s concern isn’t with merchants selling porn or access to it; the company’s concern is with the nature of the tube site business model, to the extent tubes allow essentially anyone to upload content to their platforms.

Granted, this is an eyebrow-raising explanation from Visa, given that it hasn’t exactly been a secret over the last 10 years that tube sites exist and are wildly popular – or that many within the adult industry itself regard the tube business model as problematic for some of the very reasons Visa has cited in cutting off Pornhub’s transactions.

So far as I can tell, Visa’s rationale for suspending Pornhub wouldn’t apply at all to sites and platforms which publish only their own content, or only publish content from verified third-party sources. This does not definitively foreclose the possibility of Visa acting in a more arbitrary fashion in the future, of course. But this is the same boat adult businesses have been in since the beginning with respect to ‘mainstream’ service providers, be they credit card companies, hosting providers, or any other entity that can reinterpret or modify its terms of service to exclude adult merchants at the drop of a hat.

Some in the adult industry have also expressed concern about the election of Kamala Harris as Vice President, citing her past work as a prosecutor (and her support of legislation like SESTA-FOSTA as a Senator) in targeting sex work and sex workers. I understand these concerns and do not discount them, but here too, I’m not as worried as many of my peers.

First, the office of the Vice President, even when occupied by an active and influential person, is very limited in its powers. Second, as Democrat party priorities go right now, I’d say cracking down on either the adult industry or sex work simply isn’t one. Don’t get me wrong; I don’t expect Democratic politicians to suddenly start espousing pro-sex work positions (with a few notable exceptions), but looking over the party’s 2020 platform, you won’t see anything along the lines of an explicit vow to combat online “obscenity” that we’ve seen in some past Republican platforms.

The closest the Democrats came to saying anything in their platform about sex work was this: “We recognize that sex workers, who are disproportionately women of color and transgender women, face especially high rates of sexual assault and violence, and we will work with states and localities to protect the lives of sex workers… Democrats will increase resources to eliminate the national backlog of untested rape kits so that more survivors can see justice be served. And we will support federal and state legislative efforts to make “revenge porn” and other unauthorized disclosures of intimate images a civil and criminal offense.”

True, the party’s platform makes mention of “human trafficking” and “sex trafficking” and to the extent that politicians love to conflate consensual, voluntary sex work with trafficking crimes, it’s possible that’s code for more development of FOSTA-like laws. Before I take this to presage a crackdown on sex work, let alone the production and distribution of pornography (which, it’s important to remember, is entirely distinct from “prostitution” from the viewpoint of relevant case law), I’ll wait to see what sort of legislation and enforcement proposals come from the Biden Administration in its first year or two.

Speaking of vows to vigorously enforce the nation’s obscenity laws, President Trump famously signed just such a pledge back when he was a candidate for the office. Concerns Trump might follow through on that pledge were heightened when William Barr took over as Attorney General in 2018.

How many obscenity prosecutions were initiated by the Trump Administration in support of Trump’s 2016 pledge? The total is a nice, round figure: 0. Zilch. Nada. Not one.

There’s a reason why Jeffrey Douglas, the Board Chair of the Free Speech Coalition wasn’t too worried when Barr took over: Things have changed, especially politically and culturally, since the government last made a serious attempt at enforcing the nation’s obscenity laws against the adult entertainment industry.

“There is almost no chance that there will be significant resources assigned to obscenity prosecutions,” Douglas told YNOT at the time. “Republican AGs always assures right wing Congressmen that they will aggressively pursue obscenity cases, but no one wants to work on them, not only DOJ lawyers, but FBI agents hate to work the cases too. Limited resources require Feds to refer serious cases to state prosecutors. The allocation of those scarce resources to obscenity cases aggravates them.”

Again, just as I wrote about SISEA a couple weeks back, none of this is to say there’s no cause for concern with respect to the War on Porn. All I’m saying is it’s a war with which the American segment of the adult industry ought to be very familiar by now and in which we have some potent allies of our own – including the First Amendment, a cadre of very capable litigators and a public that has increasingly embraced porn as a legitimate form of entertainment.

So, as you read about the many threats which face our industry, don’t forget to breathe. We’ve been here before. In fact, we never left “here” – we just sometimes have experienced a few blissful moments in which it’s easy to forget the war has been on since the very dawn of this industry.

Mushroom cloud photo by Pixabay from Pexels