The Election, the Supreme Court and Adult

Alex Henderson
Whether the next American president will be Republican John McCain or Democrat Barack Obama, there is a very strong possibility that he will be nominating at least one — if not two — justices for the U.S. Supreme Court. And for people in the adult entertainment industry, the question is: what types of justices would these candidates be likely to nominate, and how might their decisions affect the governance of erotica in the United States?

"This is going to be a tremendously important election for the adult entertainment industry — certainly the most important of our lifetime," stressed First Amendment attorney Lawrence Walters. "If we have one more conservative appointed to the Supreme Court, the industry is going to be stuck with potentially adverse decisions for years to come."

Walters (of the firm Weston, Garrou, Walters & Mooney) emphasized that between McCain and Obama, McCain is by far the more potentially problematic for adult businesses. McCain, Walters said, would be more likely to nominate "strict constructionist" justices along the lines of Samuel Alito or Chief Justice John Roberts rather than more liberal or centrist justices such as Gerald Ford appointee John Paul Stevens or Bill Clinton appointee Ruth Bader Ginsburg. "McCain has come right out and said that he would support Supreme Court justices who are clones of Roberts and Alito," Walters noted. "Those are not libertarians by any standpoint; they fall into the (Antonin) Scalia trap of dictating morality by the government even though it is hands off on economic issues. Strict constructionist is just a euphemism for right-wing religious conservative."

If McCain is elected, he will likely be facing an even more Democrat-dominated Congress. But Walters isn't convinced that Democrats in Congress would necessarily scrutinize a McCain nominee as carefully as they should. "The Democratic Congress, in its current makeup, doesn't have a spine when it comes to opposing Republican proposals," Walters asserted. "But if the Democrats pick up some more seats in Congress this time around — which conventional wisdom says they're likely to do — they might grow a bit more of a spine. If McCain is elected, the Democrats need to very carefully look at the next appointment to the Supreme Court because the next justice could be a swing vote."

First Amendment attorney Gregory Piccionelli (of the firm Piccionelli & Sarno) explained that the Supreme Court justice who is the most likely to be replaced during the next president's first term is Stevens, who is 88. Another possible departure during the next president's first term is Ginsburg, now 75. One problem for the adult industry, Piccionelli said, is the fact that most of the Supreme Court's socially conservative justices are in their fifties or sixties and probably won't be retiring anytime soon.

"If McCain is elected and replaces Stevens and Ginsburg with conservative justices like Alito, Scalia, (Clarence) Thomas or Roberts, the adult industry is really screwed," Piccionelli said. "If you end up with a majority of five or six conservatives on the Court, you can just about guarantee that 2257 is going to be upheld. You can just about guarantee that they will preserve the ability to bring obscenity prosecutions based on local community standards."

Piccionelli said that Obama would be more likely to replace Stevens and/or Ginsburg with similar justices — and for that reason alone, he said, an Obama administration would be much better for the adult industry than a McCain administration. Piccionelli added that although McCain seemed to favor a more libertarian type of conservatism in the past — he once described Jerry Falwell, Pat Robertson and Louis Farrakhan as "agents of intolerance" — the fact that the McCain of 2008 has been reaching out to the Christian Right makes him problematic for adult businesses.

First Amendment attorney Jennifer M. Kinsley (of the Cincinnati-based firm Sirkin, Pinales & Schwartz) said that she is impressed with Obama's history in the area of civil rights law, and she believes that his Supreme Court nominees would likely reflect that history. "Obama certainly has a storied and stellar career as an attorney," Kinsley said. "I expect that you would see him selecting very academic Supreme Court justices. I think Obama is more likely to know and be acquainted with people who have achieved upper levels of accomplishments in the legal field. From that perspective, I think that the appointments Obama is likely to make are certainly going to be better than the appointments that John McCain might make. My concern with McCain is that he would use judicial appointments as a method to sell himself to more socially conservative voters."

BDSM rights activist Susan Wright, who is the president/founder of the National Coalition for Sexual Freedom (NCSF), said that conservatism per se isn't problematic for the adult industry; NCSF, she emphasized, is strictly non-partisan and welcomes the participation of Republicans and Libertarians as well as Democrats and Green Party members. But Wright makes a clear distinction between libertarian conservatives and "Goldwater conservatives" on one hand and Christian fundamentalist social conservatives on the other — and she believes that McCain has become much too friendly with the latter.

"A few years ago, McCain was saying that the Republicans kowtowing to the Religious Right was the worst thing in the world — and now, he is courting them himself," Wright explained. "McCain has been saying for over a year that he likes the positions of Scalia, (Clarence) Thomas and Roberts, and he would want to continue the Supreme Court's move in that direction. McCain has been on the record about that, which makes it pretty clear what kind of Supreme Court he would want. McCain is certainly courting the Religious Right, and he has said that he likes three of the most socially conservative justices on the Supreme Court."

Like Wright, Diane C. Duke (executive director of the Free Speech Coalition) was strictly non-partisan when she spoke to XBIZ in early August. But she did express some disappointment over McCain's willingness to embrace extreme social conservatives, and she said that she is equally troubled by a "resurgence of radical feminism" on the left. Duke pointed out that vehemently anti-porn feminists like University of Michigan law professor Catharine MacKinnon are as hostile to the adult industry as the Christian Right, adding that new Supreme Court justices who are too far to the left could be as harmful to adult businesses as justices who are too far to the right. Whether the next president is McCain or Obama, Duke said, adult businesses need to pay very close attention to Supreme Court nominees and make sure they are strong on the First Amendment.

"It is important for us as an industry to start really engaging not only ourselves, but also, our consumers," Duke asserted. "We need to let our consumers know that protecting our free speech is a priority. Phone calls do make a difference; it's very important for people in the adult industry as well as their consumers to pick up the phone to call their senators and say, 'Look, I don't like this nominee — I don't believe he would protect our constitutional rights on the Supreme Court.' People in the adult industry and their consumers are going to need to speak out about nominees for the Supreme Court."