The online erotica industry is not particularly political. If there were a poll of its members, it's likely that the results would be all over the map. And since attacks on online erotica come from both the right (the religious nuts) and the left (the feminist, uh ... nuts), it's not surprising that some adult webmasters are viewing the November elections as something of a sideshow.
For example, when asked for an opinion on the potential impact of a new administration, Michael Price of SilverCash responded: "That's too political for me ... our sites aren't very ‘edgy' or obscene to where I think either candidate would matter to my business much." Similarly, Evan Horowitz at Xpays.com, the company that popularized the Paris Hilton sex tape, explained that, "As a general rule, I avoid political and religious discussions as it pertains to business."
This laissez-faire attitude smacks of denial, according to the lawyers and privacy experts we consulted, who all agree that this election could result in an administration that would make changes to the government that would interrupt the revenue of many adult-oriented websites.
"There's absolutely no question in my mind that this is the most important election for the industry in decades," said adult industry lawyer Lawrence G. Walters. "If things go the wrong way, the industry could be in for a period of suppression that could last for decades."
The Current Situation
Up until now, efforts to regulate "mainstream" online erotica have largely failed. Congress has passed numerous laws attempting to limit access to pornography, but these laws have primarily focused on child pornography and keeping pornography out of the hands of children. State legislatures also pass anti-porn laws, many of which are far more restrictive than comparable federal laws, particularly in states with a large evangelical Christian presence. However, while state laws have been able to, for example, forbid local distribution of pornography via bookstores and other outlets, they've had limited, if any, impact on online distribution.
However, the threat of new anti-porn laws continue to loom because they almost always garner wide bi-partisan support. Nobody wants to be characterized in the next election by his opponent as being pro-pornography. Because of this, legislators who don't want to pass anti-porn laws use a conceptual dodge-they block such laws from coming to a vote on the grounds that they won't pass constitutional muster. This political cover is provided by the fact that expansive laws against pornography-whether passed at the federal or state level-have generally run afoul of the First Amendment, as currently interpreted by the Supreme Court.
Another reason that anti-porn laws haven't impacted the online erotica industry is that the Department of Justice, which is responsible for the prosecution of obscenity and anti-pornography laws, has not always been willing (or able) to enforce the laws that do manage pass constitutional muster. A good example of this is the Child Online Protection Act, which requires a credit card as a pre-condition to viewing an adult site. The DOJ has shown little or no interest in enforcing that law, making it practically a moot point, at least for the time being.
However, while the Bush administration has not had a big impact on porn industry revenues, it has managed to stuff the DOJ with anti-porn activists, according to Diane Duke, executive director of the Free Speech Coalition, a nonprofit group. "While [former attorney general] Gonzales is gone, the structure he built is still alive and well through the fundamentalist prosecutors he put in place," she explained, adding that Gonzales's legacy includes a DOJ cadre dedicated to the idea that a "moral minority should be able to dictate to the rest of us what we could purchase, read and watch."
How Things Could Change
There are thus two things - and two things only - blocking the enactment and enforcement of laws aimed at curtailing the distribution of online erotica: the Supreme Court's current interpretation of the First Amendment, and the Department of Justice's willingness to focus on enforcing such laws at the federal level. Both of those barriers to revenue-killing legislation are currently hanging by a thread, and the November election will determine whether the thread breaks, and whether the online erotica industry suffers as a result.
Some adult erotica webmasters may be unaware of how much the Supreme Court has changed under the Bush administration. For decades, the Supreme Court has tended to rule in favor of First Amendment cases, striking down many laws aimed at the censorship of adult content. But that's no longer the case, according to Walters. "Under the Bush administration, the Supreme Court has moved solidly toward less enforcement of First Amendment rights," he said. In other words, new anti-porn legislation, which in the past might have been struck down, would probably pass muster today.
Because a vacancy in the Supreme Court is nearly inevitable in the next four years, the new administration will probably appoint at least one (and possibly two) new justices. And that could be absolutely fatal to the adult erotica industry. "Further appointments of justices in the mold of Alito and Roberts could easily result in a Supreme Court that is willing to let highly restrictive legislation stand, regardless of whether it's been passed at the federal or state level," explained Walters. What's worse, if the Supreme Court begins letting anti-porn legislation stand, it will create a blank check for either Congress or state legislatures to pass more anti-porn laws by removing the "political cover" of unconstitutionality.
Similarly, the new administration will probably appoint a new attorney general to head up the Department of Justice. The attorney general sets the tone of the DOJ and sets the priorities for which laws he/she wants vigorously enforced. The Bush administration, particularly under Gonzales, has been noticeably more activist than the Clinton administration when pursuing cases against the adult industry, according to Duke. It's sobering to think what might have happened if the DOJ under Gonzales had been armed with broad anti-porn legislation that the Supreme Court had decided was constitutional.
The Impact of the Presidency
Therefore, when it comes down to the financial health of the online erotica industry, the primary question concerning the November elections is: Which candidate, if elected, would be most likely to appoint Supreme Court justices who will "enable" Congress and state legislatures to enact stiff anti-porn laws, and an attorney general who will enforce them once they've been enacted and ruled to be constitutional?
The answer to this question is obvious: McCain.
While Obama has not shown any particular viewpoint on First Amendment issues, legal experts agree that McCain represents a significant threat to the industry. "McCain has already promised to appoint justices along the lines of Alito and Roberts and has been fairly consistent in his hostility toward First Amendment interests," said Walters. Clyde DeWitt, an attorney who specializes in First Amendment issues, agreed. "Replacing Justice Stevens with any Republican appointee likely will give the conservatives five votes, which almost certainly would mean overruling almost every precedent that keeps our industry alive," he said.
If McCain wins, his administration would likely usher in a raft of changes that might make it difficult for many sites' operation, and would (at the very least) eat into profitability. For example, a decision to enforce COPA would work to close off millions of feeder sites that drive traffic to pay sites, because credit card holders are leery enough giving their number to a paysite, and would no doubt in most cases resist giving one to a feeder site.
"This is where the rubber meets the road for this industry, and where its attention must be directed," warned Tom Hymes, a member of the board of directors for the Free Speech Coalition. "Nothing is more important for issues such as free speech, copyright, individual rights, privacy and many others that will affect life and business on the Internet for years to come."
What Can the Industry Do?
The answer to this question is, unfortunately, not much. The problem is that the adult erotica industry remains largely a pariah. As such, any endorsement of any political candidate, by the industry as a whole, or by individual webmasters, is likely to harm rather than help. That's particularly true of Obama, who has already proven vulnerable to being pictured in the same commercial as Paris Hilton and Britney Spears. It's not hard to imagine what the McCain campaign would do with an Obama endorsement from, say, BlacksOnBlondes.com.
Webmasters with liberal political leanings can, of course, donate the maximum to the Obama campaign. Those who are too conservative to stomach Obama might consider contributing to the campaign of the Libertarian candidate, former Georgia Congressman Bob Barr. While Barr won't win, every vote he gets makes it less likely that McCain will win. Walters suggests that adult webmasters could also help sway the election by pointing out, on their websites, that a McCain victory might mean an inability in the future to have access to adult content. However, it's unclear whether there are all that many voters for whom access to porn is a defining political issue.
For the porn industry, though, there's no question that the November election is a defining issue. As Duke puts it: "We are encouraging voters to support the candidate who respects and upholds the Constitution, who understands that it is our government's responsibility to protect freedom of speech, that our government has no business censoring what we read and watch and that our government doesn't belong in our bedrooms." While the Free Speech Coalition has not endorsed either candidate, it's pretty clear that unless you want to risk laws and regulations that could clobber your revenue and profit, you'll do everything you can to see that McCain loses.
This article originally appeared in the October 2008 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe.com.
