Randazza: Trump Victory, Big Prop 60 Win

Marc J. Randazza

On Tuesday afternoon, I boarded a transatlantic flight. Given all of the negativity in the 2016 presidential race, I was delighted that I would be absent for the results. I found both Donald Trump and Hillary Clinton to be awful — and I knew that on Nov. 9, no matter who won, America was a worse place. But, I had my predictions — Clinton would be the 45th president and Proposition 60 would pass.

A few hours into the flight, it was time to sleep. I knocked back an Ambien and checked the exit polls. The networks were predicting a Clinton victory, as I presumed. I posted something about it being at least a nice historical note that the live broadcast from Susan B. Anthony’s grave showed it covered in flowers and “I voted” stickers. As much as I objected to Clinton, at least that was nice.

Despite the fact that I consider myself to be further Left than Bernie Sanders, I am sad to say we have more anti-porn forces on the Left these days than on the Right.

I woke up somewhere over Ireland. I flipped open my laptop, logged onto the inflight Wi-Fi to see how some of the down-ticket races had gone. I was greeted with headlines featuring “President-Elect Donald Trump.” I also read, to my surprise, that Prop 60 had failed.

So much for my predictions. So what does this all mean? As a First Amendment lawyer, I guess I am a natural cynic. Although I voted for Obama (and even volunteered on his campaign in 2008), I saw his flaws. Let’s remember that it was his IRS that targeted political opponents with audits. When the Democrats wanted to repeal Citizens United, that was as much an attack on the First Amendment as Trump’s bizarre desire to “open up the libel laws.”

It is a mistake to look only over your Right shoulder when it comes to First Amendment issues, and especially adult entertainment legal issues. Sure, we remember the Bush years, when John Ashcroft’s Justice Department ushered in a new era of “morality” at the DOJ. Those were dark times for those who fell under the eye of the Religious Right. Nevertheless, things change and despite the fact that I consider myself to be further Left than Bernie Sanders, I am sad to say we have more anti-porn forces on the Left these days than on the Right.

One of Clinton’s main campaign platforms is that she was the only candidate with a vagina. This feminist pandering would not have ended once she was elected. When Lena Dunham is one of your campaign’s key assets, you are not a friend of the adult industry. Liberalism is no hero to free speech—at least not anymore.

Left-wing-dominated academia is falling over itself to get rid of due process on campus, as long as that lack of due process is aimed at men. Left-wing academics championed the anti-porn ordinance in American Booksellers Association, Inc. v. Hudnut. In that case, left-wing “scholars,” pushed through a law that defined “pornography” as a practice that discriminates against women, and allowed women to treat porn as a violation of their civil rights. Any woman who felt “harmed” by porn could sue a porn company. This was essentially a completely content-based Prop 60, without even the veneer that it was supposed to be aimed at health issues.

More recently, left-wing academics have pushed to remove copyright protection for pornography because they see it as “anti-progressive.” Let’s not forget our current “human trafficking” hysteria, where the view is that no woman would ever take her clothes off for money, unless she is a captive sex slave.

Hillary Clinton would have ushered in an army of regressive leftists into office with the Justice Department staffed with Women’s Studies majors, and not the sex-positive kind. I think we would have had porn prosecutions on the level that we saw during the Bush administration — and it would not have been pretty.

Therefore, if you woke up on Wednesday and thought that you were in hell because we elected Trump, the alternate reality where Hillary won isn’t any better. In fact, things might be OK for the next four years. But, I’m humble enough to remind you that my predictions haven’t been so good lately.

Donald Trump seems to be someone who probably doesn’t have a problem with porn personally. After all, his own wife appeared in at least one soft-core production. So, lets at least remember that we have “one of our own” in the White House now. Trump also didn’t seem to have much of a connection with our traditional enemies, the Christian Right. His speeches to them were clearly stilted and without any real connection.

But that was before he put Mike Pence on his ticket. Pence is as much of a Christian radical as anybody who has ever been anywhere near the White House. Perhaps more so. Therefore, I am going to revise my prediction that a Trump administration would be good to the porn industry to one of great uncertainty.

Before he was elected, I think we couldn’t have predicted what kind of cabinet Trump would have assembled. I could have believed it if you told me that he was going to name Gene Simmons, Omarosa Manigault, Jessie Ventura and Flo from the Progressive commercials to cabinet positions. Instead, he seems like he’s trying to play the political equivalent of Wesley Snipes’ character in “Demolition Man”; he’s even dug up Rudy Giuliani from the trash heap of history and wants to make him Secretary of State. Again, I suppose it’s better than who I would have predicted, which would have been Dog the Bounty Hunter.

So, here we are. Donald Trump as president, ushered in on a wave of disgust for political correctness. In some ways, that bodes well for the Freedom to film pornography.

After all, the regressive left is probably a bigger enemy than the Christian right. At least right-wing Christians have a streak of forgiveness in them. I have yet to meet a social justice warrior who has ever even heard of the word.

So, at this point, we need to look around and think about where is the horse trading going to take place? Who is going to owe who what? Where will the favors be done, and what will be traded? We shouldn’t be surprised if during some favor-trading, Trump is willing to let Pence and his ilk start kicking the industry around a bit.

But, here comes the silver lining: Prop 60.

As we entered the home-stretch, the polls were showing 60 percent support for Prop. 60. This was an overwhelming lead. The Free Speech Coalition believed that it could come from behind and win, but I predicted no such luck.

But, refusing to give up, the FSC’s Eric Paul Leue kept the faith. With FSC Board Chair and attorney Jeffrey Douglas the eternal optimist, and attorney Karen Tynan cracking her riding crop, they just kept beating the drum, and this industry finally got together and turned it around. Every porn actor and actress mobilized and social media was awash with “Stop 60.”

I think that shows that the new FSC leadership has found a special combination of drive and technique — and that this isn’t the last time we’re going to see that talent mobilized to protect this industry’s free speech rights.

So will Donald come for us? Will he trade us for something else? History suggests that he will. If he does, you should feel confident that the lessons learned in the come-from-behind fight to kill Prop 60 will come in handy.

Marc J. Randazza is a Las Vegas-based First Amendment lawyer who frequently writes on First Amendment and intellectual property issues. His most recent scholarly work, “The Freedom to Film Pornography” was published in the Nevada Law Journal


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