Obama's Victory and the Adult Industry

Q. Boyer
Barack Obama ran for president on a platform that was largely defined by the many ways in which his policies and priorities differ from those of the George W. Bush administration. His supporters within the adult industry hope that one of those differences will be a major shift in the priorities of the U.S. Department of Justice, including a cessation of federal obscenity prosecutions and the appointment of more "liberal" judges to the federal bench.

Will their hopes be realized? Will soon-to-be President Obama continue the Bush administration's practice of the occasional prosecution, focused on "extreme" content that pushes the envelope of community acceptance? Is a liberal judge necessarily going to rule in ways that are favorable to adult content producers and distributors?

One thing that bodes well for those who hope to see less stringent enforcement of federal obscenity laws is that our government is a just a little short on funds at the moment. Having recently borrowed in the neighborhood of a trillion dollars from taxpayers, let's hope that the federal government will be placed under a greater microscope concerning its expenditures and will therefore focus its effort and spending on issues that rank higher on the list of voter concerns than does obscenity law enforcement.

Within federal law enforcement circles, high-priority subjects of concern are likely to include violent crime, so-called "white collar" crime, efforts to better secure the U.S. borders and ports, counterterrorism and other high-profile, resource-intensive areas.

Regardless of whether Obama makes obscenity enforcement a priority, there remain many in Congress who will continue to push for stricter regulation of Internet content, especially adult content. To think that Obama's election will change that fact is pure folly; some of the most persistent sponsors of such regulations are part of the Democratic majority that now rules both houses of Congress. Senators Mark Pryor of Arkansas and Max Baucus of Montana, for example, have been as ardent in their support of such bills as have any of their Republican peers.

The simple truth is that, for all the "mainstreaming" of adult that has taken place in recent years, the adult industry remains a convenient punching bag for politicians – and lawmakers at all levels of government will continue to take their swings at us on a regular basis, until these rhetorical maneuvers are no longer perceived to be favored by the majority of their constituents. There's no guarantee that this more permissive time will ever come, but I think it's fair to say that the general societal trend has been towards more acceptance of sexually explicit material, not less.

Where Obama's impact on the judicial branch of the federal government is concerned, many take it as an article of faith that (1) Obama will successfully appoint liberal judges to the bench and (2) liberal judges are necessarily good news for the industry. I would say that the first assumption is probably on solid ground, as Obama is certainly left-leaning, and his candidates will be getting vetted by a Democratic Congress. The second point is not an entirely unreasonable assumption, but it is not really a safe one, either.

I sincerely doubt that any judicial candidate nominated by Obama will be subjected to detailed questions concerning obscenity law enforcement. They will be questioned on Roe v. Wade, the Second Amendment, property rights, whether or not the U.S. Constitution should be interpreted to include a right to privacy, the issue of how the U.S. handles the Guantanamo detainees and a host of other issues – but my hunch is that obscenity enforcement will not be on the radar for the legislators, considering Obama's appointees, so we will be left to guess where they stand.

Why do I assert that it's not a safe assumption that a liberal judge (or liberal politician, for that matter) will be positively disposed to the expressive rights of pornographers? Many of the industry's harshest critics come from the left, especially the feminist left. These are a very different sort of liberal than, say, Lawrence Tribe. These are liberals who, like their supposed ideological opposites on the far right, feel that there are certain classes of expression that are simply and inherently wrong — and such forms of expression should therefore be suppressed by law and official societal disapproval. A liberal judge who hails from this intellectual camp would not be a welcome sight to see on the bench from an adult-industry perspective, obviously.

On the other hand, it is not necessarily a slam dunk that a "conservative" judge is going to be hostile to the adult industry. Consider the well-publicized controversy surrounding Alex Kozinski, the chief judge of the 9th Circuit Court of Appeals. While the material on Kozinski's personal website was not nearly as "pornographic" as was originally characterized the Los Angeles Times article that brought the story to light, the materials did make it clear that Kozinski was no prude and that he possesses a rather bawdy sense of humor.

I'm not suggesting that Kozinski's choice in humorous videos or his apparent comfort with at least some forms of sexually explicit expression necessarily mean that he would have made rulings favorable to the defense in the Ira Isaacs case. His affection for such materials does suggest, however, that Kozinski has an open mind – something that is borne out by his track record as a jurist, as well.

Look at Kozinski's dissent from the majority in Perfect 10's copyright infringement case against VISA and Mastercard, for example. Where the majority found a rationale under which the credit card companies were not liable for the alleged infringement, Kozinski argued passionately that the majority was way off base. In his dissent Kozinski flatly asserted that in "straining to absolve defendants of liability, the majority leaves our law in disarray," and followed with a strong legal and logical argument in support of that assertion.

"Accepting the truth of plaintiff's allegations, as we must on a motion to dismiss, the [companies] are easily liable for indirect copyright infringement," Kozinski wrote. "They knowingly provide a financial bridge between buyers and sellers of pirated works, enabling them to consummate infringing transactions, while making a profit on every sale. If such active participation in infringing conduct does not amount to indirect infringement, it's hard to imagine what would."

Whether or not Kozinski is "conservative" depends on your definition of that term, I suppose. He was appointed by a Republican, however, and is typically described as a conservative jurist. To my knowledge, he has never rejected that label, either.

Why dwell on Kozinski so much in an article about the impact of Obama's election to the highest office in the land? Kozinski is symbolic of the danger of basing one's expectations on "identity politics." If it is true that John McCain chose Sarah Palin as a running mate in an attempt to appeal to Hillary Clinton voters, then McCain's error was to indulge in identity politics of his own. To assume that women would be drawn to Palin simply because she is also a woman is to underestimate the importance to women of Palin's stated ideology, enacted policy and past performance.

I share in the opinion that Obama's election says something very positive about the progress of race relations in this country in the years since the end of Jim Crow laws and open, official racial discrimination. However, I'm not ready to anoint Obama the Harbinger of Hope just yet. Rather than base my determination on his skin color, his rhetoric or his party affiliation, I'd prefer to wait for President Obama's record to begin speaking for itself.