2016 Election: Which Candidate Is Best for the Adult Industry?

This article originally ran in the March 2016 issue of AVN magazine. Click here to see the digital edition.

At this year’s Adult Entertainment Expo, some of the Adult Entertainment Industry’s top lawyers gave their views on the 2016 election—universally agreeing that a Republican president will be bad for the industry. Those quoted attorneys, J. Michael Murray, Paul Cambria, Jr., and Allan Gelbard, aren’t just brilliant attorneys—they’re some of my personal heroes and good friends. But, I have to be candid when I say that I think they’re wrong on the politics.

It is misguided to look only over your Right shoulder when it comes to First Amendment issues, and especially adult entertainment legal issues. Sure, we remember the Bush years, when John Ashcroft’s justice department ushered in a new era of “morality” at the DOJ. Those were dark times for those who fell under the eye of the religious Right during those long eight years. Nevertheless, things change, and despite the fact that I consider myself to be further Left than Bernie Sanders, I am sad to say we have more anti-porn forces on the Left these days than they do on the Right.

Would President Trump be particularly anti-porn? He has made no such statements, and has not appeared to be the moralizing type. Sure, in 2013, he had Miss Delaware Teen USA resign her crown because she appeared in a porn video. That seemed to come more from a brand-management perspective than an anti-porn perspective. Let’s face it, it will be difficult for a guy who owns the rights to pageants that trade in women parading around in bikinis to have the moral authority to turn anti-porn. Further, most anti-porn politicians have been that way because they felt it was necessary to pander to the religious Right.  Trump, on the other hand, seems to have yielded that color of the political spectrum to his Republican competitors. If he is elected at all, it will not be due to the favors of the Bible-thumping-set.

This is not to say that Trump is good on First Amendment issues, in general. He seems to be the candidate most likely to wield power to shut down dissent, as he frequently threatens his critics with defamation suits. A president like that might find some common ground with Justice Kagan, who seems to believe the protections provided to us under New York Times v. Sullivan might be worth re-examination. Therefore, Trump is not the First Amendment’s best friend, but he has revealed no beliefs that suggest he would be anti-porn. In fact, his constant rejection of “politically correct” culture suggests that while he might be bad for the First Amendment overall, he very well might give a pass to porn producers.

What about the other Republican candidates? Given how many are still in the race, we don’t have the column space to talk about all of them, but what about those who are at least serious, as of the time of this article? President Cruz has very much courted the religious kooks, therefore you can rest assured that his Department of Justice will look a lot like George W. Bush’s. You can certainly expect obscenity prosecutions and a renewed interest in inspections under 18 U.S.C. § 2257. If you didn’t like the Bush years, then you won’t like President Cruz.

Rubio? The Florida Senator seems to be willing to court the Religious Right as well, and he signed on to a letter complaining that the Obama administration was not tough enough on the porn industry.

But, that letter was not a Republican-only affair. A total of 42 senators signed on to it, including seven Democrats.

And therein lies the problem. The Democrats are not necessarily friends of the First Amendment, nor are they necessarily friends of the porn industry. In fact, I know a few devout Mormons out here in Nevada. Mormons are typically stereotyped as being “anti-porn,” and the Mormons I’m referring to personally despise porn. But, you know what? They also very much support the First Amendment, and the pornography industry’s right to publish what it likes. They just want to convince people to stay away from it. That’s called “the marketplace of ideas.” Meanwhile, so-called “Liberals,” including Dianne Feinstein and Bill Nelson, called upon the Obama administration to crack down on porn.

So what do you think a Democrat will do once in office? Fair enough that Obama’s DOJ has been largely “hands off” when it comes to porn. But, it isn’t as if they dropped the obscenity prosecutions they inherited from the Bush administration. They kept pressing for jail time for John Stagliano and Ira Isaacs, when it would have been just as easy, and constitutionally proper, to drop the cases.

So what about President Clinton or President Sanders? Do you think they’ll be hands off? I doubt it. One of Clinton’s main campaign platforms is that she is the only candidate with a vagina. Personally, I don’t think that should be a qualification for a job, unless you do that job with your vagina. But, this feminist pandering is not likely to end once she is elected. Sanders? He’s my guy, but I recognize that one thing that comes along with hardcore Liberals is a contingent of feminists and “politically correct” types.

You need look no further than college and law school campuses to see the proof. These bastions of liberal thought are some of the most speech-unfriendly places in the country. You need only consider the swell of demands for “safe spaces” and “trigger warnings” to see that Liberalism is no hero to free speech—at least not anymore. Left-wing-dominated academia is falling over itself to get rid of due process on campus, as long as that lack of due process is aimed at men or those who they politically oppose. Left wing academics championed the infamous anti-porn ordinance in American Booksellers Association, Inc. v. Hudnut. In that case, left-wing “scholars,” who would be very much at home with either Hillary or Bernie, pushed a law that defined “pornography” as a practice that discriminates against women, and allowed women to treat porn as a violation of their civil rights. Thus, any woman who felt “harmed” by porn could seek damages through civil lawsuits. More recently, left-wing academics have pushed to remove copyright protection for pornography because they see it as “anti-progressive.”

And who pushed the anti-pornography civil rights ordinances? Catharine MacKinnon—hardly someone the Trump administration would welcome over for dinner. However, you can bet Hillary or Bernie would be more than happy to share an audience with her.

Let’s not forget our current “human trafficking” hysteria, where the prevailing view is that no woman would ever take her clothes off for money, unless she is an unwilling sex slave. In this latest trend, the extreme right and extreme left joined forces to assume every actress in a porn movie must be the victim of human trafficking.
The adult entertainment industry needs to stop letting the left take it for granted.

Regardless of your political preferences, if you were to choose a President solely on the basis of what’s good for the adult entertainment industry, my presumption is that Trump would be the friendliest candidate. He’s never been a religious demagogue, and while he tries to pay lip service to the Christian right, I don’t think they’re going to find themselves heavily aligned with a man we’ve never actually seen open a Bible. Following Trump, Sanders is probably the second friendliest candidate for porn because, at the very least, he would have no use for the Christian right. However, his administration would likely be filled with a good amount of censorship-friendly feminists, and that would be bad for the industry.

Following Bernie, I’d say that Cruz would be the runner-up for worst serious candidate for porn, as he would likely be a repeat of the George W. Bush administration.

And in dead last place, Hillary Clinton. Clinton is very comfortable pandering to whatever constituency she thinks will propel her to power. She would have no misgivings about pandering to the Christian right and to feminists.  She would certainly be in favor of expansive abortion rights, but that will leave her with needing to trade something to the Christians. I predict that she would be more than pleased to offer up the porn industry as the sacrificial lamb—thus placating the religious and the feminists in one fell swoop. If she wins the Democratic nomination, and you are voting only on the issue of “what is good for the porn industry,” then, you should switch parties and throw your weight behind Trump. Of course, you may have reasons you don’t want to do that, but I think that I’ve made the case that “good for the adult entertainment industry” does not always follow the Party Line.

Marc J. Randazza is a Las Vegas-based First Amendment lawyer who frequently writes on First Amendment and intellectual property issues. For a full discussion, see Randazza, Marc J., Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights (January 16, 2016). Nevada Law Journal, Vol. 16, No. 1, 2016. Available here.