Image: New York Daily News archive

What Happens If the Trump Administration Goes After Porn?

Porn laws in the US are opaque, making them a perfect tool for official harassment by the likes of attorney general nominee Jeff Sessions.

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Feb 1 2017, 10:00am

Image: New York Daily News archive

Whatever President Trump's personal views on the adult industry—and given that he's appeared in several porn movies, they're likely neutral to positive—he's allied himself with quite a few politicians who aren't so keen on the skin biz. Most significant among them is Jeff Sessions, who noted during his Senate Judiciary Committee confirmation hearing for attorney general that he'd be happy to prosecute porn.  

If Sessions is voted in and decides to go that route, it won't be an easy battle for the DOJ. The standards for determining that something is obscene—and therefore not protected speech—are infamously vague. Under the Miller test (a nod to 1973's Miller vs. California), prosecutors are required to prove that the work is "utterly without socially redeeming value" and lacking in "serious literary, artistic, political, or scientific value."

If that sounds confusing and unclear, well, that may be why few obscenity prosecutions have ended in a guilty verdict. Of the three most prominent obscenity cases of the last decade, only one resulted in a successful conviction: Max Hardcore, whose work pushed the limits of acceptability even within the adult industry. (Extreme Associates' case ended in a plea deal, and John Stagliano's was ultimately dropped by the government.)

More often than not, the fate of the adult industry comes down to the benevolence of lawmakers.

But winning obscenity cases isn't really the point for the government. As Mark Kernes, Adult Video News' senior editor, explained to me, "the ability to target producers of sexually explicit content for harassment," and create a chilling effect on the adult industry, is the true goal of these prosecutions. Fighting the government is expensive, painful, and impossible to escape—unlike in a civil case, there's no chance to settle or pay to make it go away—and that threat alone is often enough to shut down adult companies.

This kind of legally dubious chilling effect isn't limited to obscenity law: it's pretty much a standard feature of porn law, which tends to offer up harassment masked in baseless claims of improved safety and the protection of children.

Take, for instance, 18 USC 2257, also known as 2257 records keeping regulations, or just 2257 if you're short on time. Ostensibly, 2257 is about keeping underage people out of porn by requiring pornographers to maintain extensive records on all their performers, but the history of its enforcement paints a different picture entirely.

First approved in 1988 (and later enacted in the mid-90s), 2257 got truly serious in 2005, when the Bush administration introduced a vastly more onerous version of the legislation. Under the 2005 version, anyone who happened to be distributing porn—even "secondary producers" publishing hardcore material someone else created—was required extensive records adhering to a very particular standard of organization on everyone appearing in the material. How particular, exactly? A section discussing a website's link to its 2257 statement notes that "the required statement shall be displayed in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material"–as font size and text color clearly have an impact on the sexual exploitation of minors.

At a campaign rally in July 2016, President Trump autographs a copy of Playboy featuring himself on the cover. Image: Sara D. Davis/Getty

Complicated filing regulations and highly specific typography requirements weren't the only headache created by 2257: lawmakers also required those records to be available for federal inspection during work hours, with absolutely no notice. And that added expense of maintaining these records pushed a number of porn companies out of business, and made it much harder for small time operations to get off the ground. (I shuttered my own indie porn site in early 2005, shortly before the new regulations went into effect.)

And other than crushing small companies under the weight of regulation, 2257 hasn't really accomplished much. As Kernes puts it, "2257 is a pain in the ass, and it's expensive to the industry, but frankly there has yet to be an adult company prosecuted for violation of 2257."

Even in cases where 2257 could be very useful, where someone's very clearly in violation of it—say, in a revenge porn case—it's largely gone unenforced. As Carrie Goldberg, a New York-based lawyer specializing in nonconsensual porn cases, explained to me, "There is no private right to enforce [2257]." Unless the Attorney General decides to prosecute, the law has no impact at all. Despite its stated goal of keeping children safe, 2257 has done little for underage people who've seen their sexts go public (unless they take comfort in knowing law abiding pornographers are out there shelling out tons of cash to keep up their records).

Fortunately for pornographers, the statute's starting to fall to pieces. Earlier this year, a federal judge declared key portions of the law to be unconstitutional—specifically, that bit where records have to be available for inspection 24/7. There've also been questions about whether 2257 stands up to strict scrutiny. Since it's hard to argue that such a broad and unfocused law is justified by a compelling government interest, narrowly tailored, and the least restrictive means for achieving its goal, 2257's opponents are pretty confident that it's on its way out.

And yet the dismantling of 2257 doesn't undo the damage this flawed and obviously unconstitutional regulation has wrought on the porn industry. And that's what's truly terrifying about porn law. Whatever "think of the children!" or public health facade these laws hide behind, they're usually little more than legally codified harassment—harassment that can take years, if not decades, to get of the books.

More often than not, the fate of the adult industry comes down to the benevolence of lawmakers rather than the actual rule of law. With a government that sees porn as an enemy rather than an industry, things are likely to get very, very ugly. And even if the government never actually "wins," the adult industry could still end up the loser.