Today I attended the XBIZ legal webinar on the potential impacts of the Trump administration on the adult creator community and industry. It was seriously informative and dynamic with an all-star cast of panelists moderated by Clara Kitty, cam model and clip producer. We heard from adult entertainment and free speech lawyers Corey D. Silverstein and Larry Walters, Alison Boden, Executive Director of the Free Speech Coalition, Savannah Sly, founder of the New Moon network. I wanted to write a brief summary of what I took away from the panel in terms of key points and thoughts about the future.
One of the first ideas which stood out to me which was discussed by the panelists has to do with the 1st Amendment. This is the legal concept that restriction of speech on the basis of content is a legal or governmental practice which has to be subject to serious outside oversight —there must be really important cause if restrictions on 1st Amendment rights are put into place in any circumstance, whether on an individual level or on the level of policy. I think this is important because we live in a polarized era where saying the wrong thing with regards to political, cultural and social issues can yield serious forms of social exclusion, marginalization, and bullying (including cyberbullying) which can have deadly results. We need to be more acclimated to the notion of what Michel Foucault called an “ethics of discomfort;” a commitment to truth and a principle of what April Flakne called “fearless speech” which often involves having to additionally listen to perspectives which we find unpleasant or with which we disagree.
A primary topic in terms of the operations of the state apparatus which greatly concerned me to learn about is the fact that AI surveillance is being used to exacerbate an ICE practice of detaining sex workers at the U.S. border. Sophie K Rose of Novara media reports in her article “Sex Workers Are Being Detained At The U.S. Border,”
Under current laws, any person US border agents suspect has sold sex in the last ten years can be denied a visa, refused entry, detained, deported and banned from the US for five to ten years.
Sophie continues:
Based on stories shared with the [United Sex Workers trade union], Lorelei said workers believe the border force uses “facial recognition surveillance technology and more general background checks”. Some speculate that sex work advertising websites might share workers’ personal data with the state, while others believe the state has ways of accessing this data without websites’ permission.
If you aren’t an adult creator, you may wonder from a selfish perspective why you should be personally concerned with this phenomenon. If someone is not a trafficking victim and is voluntarily engaging in adult creator work, they are making a personal choice to pursue a profession in adult content creation out of their own liberty and for which you are not absolutely personally responsible. However, the sociocultural history of the United States and of the pornography industry—of all forms of sex work in general—shows us that both criminalized sex workers and legally-acting adult creators are generally test markets, test subjects for policy, and generally merely the first and most vulnerable folks to experience the power-effects of new government policy or business measures which then can set a standard to be applied to the general populace.
In this case, the concern is privacy rights. As I have written elsewhere, Simon Goldstein has done powerful research into what he calls the AI Safety Dynamic, and specifically has raised concerns about the privacy rights of consumers of adult content if “always agreeable” artificial intelligence relationship chatbots such as those created by the company Replika are implemented. While it’s not often discussed in “polite company,” adult entertainment and adult creator work is an industry of incredible magnitude and significance. Artificial intelligence on Google yields the following information: “the porn industry in the United States generates between $15 billion and $97 billion annually, which is more than the combined revenues of ABC, NBC, and CBS, and the NFL, NBA, and MLB.”
The effects of normalizing the invasion into adult creator’s private lives include the erosion of the privacy rights of all United States citizens. If you think, as I do, that solitude is critical to a well-lived life, or what Aristotle termed eudaimonia, if you think with Rainer Maria Rilke that friendship is “the love that consists in this: the two solitudes protect and border and greet each other,” then you should understand my position.
Another concerning legal phenomenon which the Free Speech Coalition reports is that actors in the U.S. government are taking steps to sue adult creators if a minor accesses an adult site regardless of demonstrable harm. Legislators and policymakers are taking steps to redefine the concepts of “consent” and “human trafficking” in a manner generally recasting onerous regulations with the guise of “concern,” which would often sweep voluntarily-acting sex workers and adult creators into Kafkaesque bureaucratic legal nightmares under the pretense of “protecting children,” a goal which certainly no one can disagree is noble, but which it is therefore all the more critical is only undertaken properly and in good faith.
Alison Boden of the Free Speech Coalition reports that there is some possibility of progress with regards to banking fairness; we have seen reporting such as that by Jenavieve Hatch for the Huffington Post on the U.S. government seizing the financial assets of sex workers without cause or explanation. If you are a woman who is not a sex worker or adult creator who thinks that you won’t be the next target of this kind of economic disenfranchisement, if it’s not opposed as a practice, you are more naïve than I believe the average intelligent woman to be and need to reconsider your worldview in an era after the overturning of Roe v. Wade.
The question of obscenity prosecutions is very important and to me was probably the most intellectually provocative. Sen. Mike Lee (R-UT) is advancing a bill to redefine “obscenity”—“to establish a national definition of obscenity that would apply to obscene content transmitted via interstate or foreign communications,” arguing that obscene speech is not free speech protected by the 1st Amendment. And what is the popular understanding of this definition of obscenity? Typically, people prosecuting obscenity resort to the truism “I can’t tell you what obscenity is, but I know it when I see it.”
It’s beyond obvious that certain forms of pornographic content, such as scatological imagery, imagery of bestiality, or imagery of sex with children range from pushing the limits of the morally acceptable to being completely unacceptable moral transgressions. However, we have seen practices such as anal, oral, premarital, homosexual or adulterous sex included in definitions of unlawful sexual acts which could by some religious conservatives be considered “obscene” and thus merely discussing them would be prosecutable. During the Bush-Reagan era we saw obscenity task forces assembled to prosecute obscenity cases, but the good news is that those have been disbanded.
We might (or at least, could) additionally see private individual or class action suits against creators whose content is considered “obscene,” because the law is very vague and overbroad, but an organization called PHE sued the Department of Justice with a good outcome regarding obscenity laws being used to “drain legal talent.” This success occurred even though typically the DOJ wins 99% of cases. Lawyers thus tend to think a return of the Reagan-Bush era obscenity task forces would be ill-advised. There have been very few cases of obscenity prosecutions since the task forces were disbanded. I don’t think the Trump administration would truly want to bring back the U.S. equivalent of the Islamic Revolutionary Guard Corps in this country.
During the XBIZ seminar, I additionally learned that the Woodhull Freedom Foundation has successfully brought legal challenges against FOSTA/SESTA. (They also have a learning hub which looks very promising.) There was a question raised during the panel discussion—would a Trump Department of Justice prioritize FOSTA/SESTA prosecutions? The panelists do unfortunately believe we may see potential additional criminal enforcement of the statute. There is much work to be done to oppose this legislation and protect sex workers and adult creators from its effects, which have included the deaths of sex workers in criminalized sectors of the industry forced to resort to streetwalking after FOSTA/SESTA shut down Backpage.com. For further information and background on this topic, see the Huffington Post—‘This Bill Is Killing Us’: 9 Sex Workers On Their Lives In The Wake Of FOSTA.
The question was asked: what steps would lawyers advise we take in the hypothetical case that pornography is banned? The answer the panelists seemed to agree upon is that lawyers will be suing quickly if that were to occur, but it’s very unlikely.
When asked about her perception with “boots on the ground” of current sentiment among the sex worker and adult creator communities, Savannah Sly, Founder of New Moon Network, relates that current feeling regarding the looming prospect of a Trump administration among sex workers and adult creators is mixed, but many are feeling tense, frightened or lashing out.
This concludes my report back on the XBIZ legal webinar on the Trump administration and adult creator work featuring panelists such as Corey Silverstein and others. If you want to support this cause and help people directly, it’s a good idea to support their community organizations in various ways, for example by donating to the Free Speech Coalition, the “nonprofit non-partisan trade association for the adult industry.”
Thanks.
Kisses,
Princess Giulia Ricci 