The war on pornography has begun. And while it may seem insignificant compared to some of Donald Trump’s plans for his first 100 days in office, it nevertheless represents a very real threat to a sui generis prerogative of every American consumer: the right to enjoy adult films.
On July 16, 2016, Trump signed “The Children’s Internet Safety Presidential Pledge,” drafted by the anti-pornography organization Enough is Enough. The eight-page document, which is popular with the Republican Party’s conservative base, purports to shield children from “dangerous [online] content and activity,” but more generally calls for the establishment of “a Presidential Commission to examine the harmful public health impact of Internet pornography on youth, families and the American culture.” By signing the pledge, Trump ― who has appeared in three softcore porn videos and who opened the first casino strip club in Atlantic City in 2013 ― aligned himself with the position that pornography is a public health hazard, an assessment with which most scientists and public health specialists disagree.
The Republican National Committee’s current platform includes language similar to that of the Internet Safety Pledge. “Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the life of millions,” states the platform, which was ratified at the 2016 GOP convention in Cleveland. “We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well being.” In keeping with this policy, some Republican-controlled state legislatures have already begun to take action. Utah recently passed a law that labels porn a “crisis” and an “epidemic,” and the governor has requested taxpayer money to combat what he calls the “dangers of pornography.” Virginia is set to debate a similar resolution during the upcoming legislative session, and a South Carolina lawmaker has introduced legislation to block access to pornography on all computers sold in his state.
There is considerable concern within the adult film industry that more such laws will follow. Many fear that the Republican-controlled Congress will reclassify pornographic material, which is currently afforded freedom of speech protections, as obscene, and therefore no longer safeguarded by the First Amendment. This approach is consistent with conservatives’ willingness to shape the interpretation of the First Amendment on moralistic grounds. (An example of this is the proposed First Amendment Defense Act, which would allow any American citizen to discriminate against gay couples based on a “religious belief or moral conviction.” Trump has pledged to sign the law if it’s approved by Congress.)
The United Kingdom has already taken more drastic steps to limit the filming and distribution of pornographic content. The country’s “Audiovisual Media Services Regulations” ban the production of pornography that contains any sex acts designated “not acceptable” by the British Board of Film Censors. (Some of the prohibited acts include spanking, face-sitting, and female ejaculation.) Additionally, Parliament is considering a bill that would force internet providers to block many adult websites. Israel has also recently taken steps to curtail the online distribution of pornography.
These restrictions severely curtail domestic pornography production, and have forced many studios underground, to another country, or out of business entirely. From a performer’s perspective, they dramatically decrease the number of available jobs, leaving many actors without a vital source of income. If organizations like Enough is Enough ― with its charter that seeks “a society free from sexual exploitation” ― have their way, it could signal the domestic industry’s death knell, putting thousands of actors and pornographers out of work. It would also severely restrict consumers’ rights, leaving many without a legal source of online pornography.
Currently, two states specifically protect porn production as a First Amendment right (California and New Hampshire), and there is some optimism that Trump’s administration will allow this arrangement to continue. In his November 13 interview on “60 Minutes,” Trump argued that a particular aspect of public health legislation ― abortion rights ― should “go back to the states” should Roe v. Wade ever be overturned. Consistent with that position, it’s possible that he would allow states to determine their own regulations concerning self-declared public health “crises,” including pornography.
The pervading sense within the industry, however, is that the incoming administration will be bad for business. For example, at the 2016 AVN Adult Entertainment Expo, a panel of porn industry lawyers weighed in on the potential effect of a Republican presidency. The consensus was that the industry “will suffer greatly if a Republican is in the White House” due to increased harassment and intimidation by federal prosecutors, as well as from the application of anti-obscenity laws “that [haven’t been] enforced in a long, long time.” In fact, Attorney General nominee Jeff Sessions has already signaled his willingness to reinstate the Justice Department’s shuttered Obscenity Prosecution Task Force.
Alana Evans, Vice President of the Adult Performers Actors Guild, agrees with the industry lawyers’ assessment. “While many Americans obviously watch porn and enjoy our form of entertainment, we become a very easy target for the morally concerned citizens of the Republican Party,” Evans said in an interview with Fox News the week after the election. “When we have a Republican-led administration, obscenity cases are more likely to be filed, and our freedom of speech is at risk. By telling the world that adult performers are a public health crisis, we are now put in the direct line of fire for abuse, hate, and discrimination.”
Congress could find other ways to restrict the First Amendment rights of performers as well. California’s Proposition 60, which was defeated in November, provides an interesting case study. Its proponents promoted it as a bill to protect the health of industry performers by requiring condom use in porn production. The details of the legislation, however ― which would have allowed private citizens to file suit against porn studios for suspected violations of the law ― could have resulted in the health information and personal details of thousands of actors becoming a matter of public record, opening them up to harassment and intimidation. It would also have taken away performers’ right to choose whether or not to take part in a condomless production.
If a similar bill were to be passed at the federal level ― a realistic possibility, considering Prop 60 lost by only 8 percentage points in solidly-liberal California ― it would threaten performers’ rights to privacy and freedom of sexual expression. It would also gut the porn industry, which relies heavily on condomless films (many studios opt for other successful preventative measures like education, PrEP, and frequent testing). Porn studios would be forced out of business, and just as with the sex-phobic FADA-like legislation, performers and pornographers alike could lose their jobs.
As the war on pornography heats up, the adult film industry’s best hope might lie in educating the public, using their successful response to Proposition 60 as a model. As recently as September, a USC Dornsife/Los Angeles Times poll found that 55 percent of registered California voters supported Prop 60, with 32% opposed. In the months leading up to the election, the No On Prop 60 coalition, despite being outfunded ten-to-one, mounted a wide-ranging online effort to inform voters about the bill’s threat to privacy and free speech, eventually defeating the proposed legislation by eight points.
The continuing challenge facing pornographers is to show that porn is neither a menace nor an epidemic, and that anti-pornography legislation threatens the Constitutional rights of performers, producers, and consumers alike. Moreover, they must illustrate that their trade has a positive impact on jobs and the economy, and even that porn consumption has health and public safety benefits. If the industry’s efforts aren’t successful, then the era of American pornography as we know it might very well come to an end.