JESUSLAND—It's been just over a year since Donald Trump was awarded the presidency of the United States by the Electoral College, and just under 10 months since he took office. And to many, it's been surprising that members of his administration—most notably racist arch-conservative Attorney General Jefferson Beauregard Sessions III—haven't yet gotten around to attempting to destroy the adult entertainment industry through massive FBI stings and local busts of adult video/web producers and cam performers.
The most likely explanation for that is, with no major national elections coming up, the Trumpistas are spending their time consolidating their power by getting rid of those troublesome environmental laws/regulations, banking laws/regulations, drug/chemical safety laws/regulations, church/state separation laws/regulations and a few more, plus making sure the Very Rich get to pay less taxes, all while the federal government cuts services to the vast majority of the population and sinks deeper into debt.
But as the 2018 elections grow closer, and with Trump's favorability ratings continuing to sink, as are those of Republicans in general (not to mention those of corporate-friendly Democrats), conservatives will have to figure out how to stay in power long enough to complete their mission (which some suspect is to turn the U.S. into a fascist theocracy)—and over the years, one of the best ways they've found to get their candidates (re)elected is to create a moral panic around the proliferation of sexually explicit content.
Sure, the "Pornography Is A Public Health Crisis" resolutions that were passed in 2016 by various state legislatures were a timid start; the elections hadn't taken place yet, and Republican operatives were doing their best not to call attention to things like their candidate's comments during an Access Hollywood bus tour, referring to Billy Bush's co-host Nancy O'Dell, "I moved on her, and I failed. I'll admit it. I did try and fuck her. She was married." Or his musings about the actress they were about to meet, Arianne Zucker: "I better use some Tic Tacs just in case I start kissing her. You know I'm automatically attracted to beautiful—I just start kissing them. It's like a magnet. Just kiss. I don't even wait. And when you're a star, they let you do it. You can do anything. Grab 'em by the pussy. You can do anything." Indeed, the idea that Trump would target porn on his own is nearly unthinkable. Even though, at age 71, Trump is likely more interested in having power over women rather than actually fucking them, it's unlikely that he would work up the energy even to announce an anti-porn campaign—unless, of course, his handlers told him it was necessary.
But the same can't be said for the current Republican majorities in Congress. Take, for example, the absurd linkage between adult content production and sex trafficking in federal legislation like the Senate's SB 693, the "Stop Enabling Sex Trafficking Act" (SESTA), which just passed that body's Commerce Committee, or a companion bill in the House, HR 1865, the "Fight Online Sex Trafficking Act," the objective of both of which is to create liability for website owners for anything their subscribers/users would post on the site, whether those owners were paying attention or not, and whether those owners moderated the site or not. As the titles of these bills suggest, they're supposedly about stopping sex trafficking, but in reality, they will more likely cause webmasters to overreact and censor any speech that looks or sounds as if it is even remotely involved in "sex trafficking by force, threats of force, fraud, or coercion," as one section of the Senate bill reads. And since policing all comments and posts to high-traffic sites is a time-consuming task, webmasters are likely to leave the censorship to watchdog programs designed to eliminate all posts with certain words or word clusters—an even greater threat to free internet speech.
And then there's the courts. Trump has been getting plenty of advice from religious conservatives both on his staff and in Congress—not to mention from the ultra-conservative Heritage Foundation—regarding who he should nominate to fill the dozens of vacancies on the federal district and appeals courts. And so far, every one he's nominated has been anti-abortion, anti-sexual free speech (if not anti-free speech in general), anti-consumer—in fact, anti pretty much everything that a social liberal could support—and the Senate has confirmed 13 of them already, including Antonin Scalia's replacement Neil Gorsuch, replacing several much more liberal judges. But the U.S. Courts of Appeal currently have 18 vacancies and the federal district courts have 119, and confirming conservatives to fill those slots is a top priority in the Senate. Why? Because, as Eleanor Clift noted in a recent Daily Beast article, even if Trump is impeached and Republicans lose control of both houses of Congress, the new judges, together with the conservatives currently on the bench, will carry on those jackasses' ultra-conservative legacy well into the middle of the 21st century—and rest assured, those in the adult industry won't be happy about that.
A similar if shorter-term logic applies to Sessions' replacements for currently serving U.S. Attorneys: While Republicans are in power, the U.S. Attorneys will be more likely to look for obscenity cases to prosecute. Adult industry veterans remember that it was just about a dozen years ago that the Justice Department hierarchy fired the U.S. Attorneys serving in Arizona, Nevada and Southern California specifically because they "refused to prosecute the good [obscenity] cases we gave them."
With all that in mind, we were fascinated by an analysis conducted by Ken Broda-Bahm, Shelley Spiecker and Kevin Boully, legal consultants for the Washington law firm Holland & Hart LLC, titled "Jury Persuasion In An Alt-Fact World," an unsubtle reference to the meme first uttered by Trump "advisor" Kellyanne Conway: "alternative facts"—by which are meant outright lies and other types of falsehoods being promoted as legitimate responses to actual facts.
But one of the main problems with "alternative facts," according to the consultants, is that after a year of hearing them from the highest officials in the country, not to mention a lot of alleged "scientists" and "experts," many (perhaps most) people in the potential jury pool, the proverbial ones who "aren't smart enough to avoid jury duty," will be bringing those alternative "facts," which many of them believe with all their hearts, into the jury box and later into the jury deliberation room.
Among the problems the consultants forsee regarding modern juries are the worry that jurors will doubt the veracity of scientists and other experts who testify (because, bascially, what do they know, right?); that they will give more credence to testimony by law enforcement officials than other witnesses to a situation; that when it comes to industries "causing irreparable and lasting environmental damage," the jurors will assume that such claims are "fake news"; and that rather than looking at witnesses who are well-educated on a particular subject as being more credible, they may simply look at those people as "members of a different tribe," with no more actual authority to discuss their subject than anyone else.
So how might any of that apply to a jury considering an adult obscenity case? In past trials, the government has put on witnesses who have tried to claim that certain types of sexual content cause psychological harm to the viewer—an established falsehood—while the defense has countered with experts in psychology and sociology to debunk such claims. Will juries be smart enough to be able to distinguish the horseshit from the evidence? Or might they assume, for one reason or another, that any so-called "expert" who supports sexual free speech is giving them "fake news"? Or how about the "experts" on community standards, who claim to know that the majority of community members don't want porn in their community, even though no polls on the subject have been taken? (One local prosecutor who actually did take such a poll, Morley Swingle of Cape Girardeau County, Mo., asked a group of 237 recently discharged jurors whether an adult should be prohibited by the government from buying or renting a sexually explicit movie of an adult man and woman having sexual intercourse? Seventy-six percent of that group said no. When asked about the government prohibiting a movie featuring adults engaging in oral sex, 74 percent said no. Faced with those results, he refused calls to prosecute an adult tape that a community member had complained about.)
The active meme here, as the consultants see it, is what they call "persuasive resistance," which they divide into four sub-categories: 1) dominant narrative; 2) authoritarianism; 3) fear; and 4) tribalism. As regards the adult industry, an example of the "dominant narrative" would be the pervasive idea, pushed relentlessly by religious pro-censorship groups and many law enforcement officials, that watching porn is harmful and contributes not only to repression of women but aids in sex trafficking. After people have heard such lies for years, according to the consultants, they will have a tendency to reject any evidence that contradicts that narrative, no matter what sort of expert they hear it from.
"Currently, rejection of science is a dominant narrative receiving significant attention in the legal industry and beyond," the consultants write. "Public perception is that science is no longer trustworthy ... In the 2016 Pew Research Study, differences in opinions between a sample of scientists who were members of the American Association for the Advancement of Sciences and members of the public were measured and analyzed ... When asked whether climate change was due mostly to human activity, 89 percent of scientists said yes, but only 50 percent of the public agreed. When the same populations were asked whether humans evolved over time, 98 percent of scientists said yes, but only 65 percent of the public concurred." That's a problem.
Regarding authoritarianism, which is defined as "a psychological habit of respecting authority, the rules and one’s own in-group," the consultants also found that jurors with a proclivity toward authoritarianism are significantly more like to, among other things, "Give strong presumption to conventional beliefs"; "Focus more on punishment as the goal, as opposed to justice, both in the civil and criminal context"; "Give less support to civil liberties"; and "Side with the party with the greater social prestige." Guess which side in an obscenity case will get shafted by authoritarian-believing jurors?
The consultants' third and fourth points are also dangerous to adult interests. "Fear motivates people to hold a position because it increases feelings of security and reduces feelings of dread," they write—and just think about what percentage of the population is fearful of nearly anything to do with sex!
Regarding tribalism, they write, "Identification with social groups is a powerful influencer that shapes beliefs and behaviors. Families, religious organizations and ethnic groups give individuals a sense of value and community. Before jurors ask themselves, 'What do I think about this attorney's argument,' they implicitly ask, 'How will my agreement or disagreement with this argument impact my identification with my tribe(s)'?" What devout Catholic, for instance, will want to confess that he or she voted to acquit an adult movie producer or video store owner of obscenity charges? Conservative Jews and Muslims might easily have similar problems.
Interestingly, a long segment in the season finale of Last Week Tonight With John Oliver, which aired this past Sunday, covers similar territory. Oliver dissected the three primary manipulation tactics that President Trump uses to maintain his power over his supporters—tactics that are widely emulated by conservative/religious groups that support him.
The first, according to Oliver, is "delegitimizing the media" by accusing them of airing/printing "fake news" and claiming that everyone from CNN to The New York Times have such inherent liberal biases that anything they report about Trump, his cabinet, his advisors or his policies should automatically be discounted. The second is what Oliver calls "Whataboutism," which others might term "deflection." It's the process of taking attention away from a particular heinous statement or action by bringing up another, irrelevant statement or action committed by the "other side." Or as Oliver himself put it, "It implies that all actions regardless of context share a moral equivalency. And since nobody is perfect, all criticism is hypocritical and everyone should do whatever they want ... It doesn't solve a problem or win an argument. The point is just to muddy the waters, which just makes the other side mad."
Similarly, the third tactic is "Trolling": Being "willfully provocative" for no other purpose than to anger the enemy. Trump does it pretty much every day on his Twitter feed, and most members of his administration engage in similar put-downs as well.
The point is, all of those tactics lay the groundwork for tainting the population (from which any jury pool is drawn) with enough doubt about legitimate experts and institutions that people, even those of good character and intelligence, don't know where to turn—resulting in a form of chaos that it will take our society many years to recover from, if in fact it ever will. And that will be a real problem for the adult entertainment industry when it has to rely on those people of good character and intelligence when it faces them on a jury.
