What Does Scalia's Death Mean for the Adult Industry?

What Does Scalia's Death Mean for the Adult Industry?

WASHINGTON — The death of U.S. Supreme Court Justice Antonin Scalia has shaken up the presidential race and is generating considerable discussion within adult industry legal circles.

Scalia, who was described by President Barack Obama as “a brilliant legal mind with a pugnacious style, incisive wit, and colorful opinions," was found dead at a Texas ranch on Saturday morning when he did not appear for breakfast.

The justice, who died at 79, changed oral arguments as he became an active participant with tough questions for advocates.

For the adult industry, the conservative icon on the bench many times was a thorn and ruled in numerous decisions affecting the industry.  

XBIZ on Saturday evening asked a number of the top adult industry attorneys about what the Supreme Court justice’s death means for the adult entertainment industry. Here are their comments.

Larry Walters, Walters Law Group:

The unexpected death of Justice Scalia means President Obama will likely be in a position to nominate another justice for the Supreme Court. Recent nominations have come fairly quickly after the vacancies were announced. So the question is whether the confirmation process will be held up by Republicans long enough for a new administration to submit a nomination. Confirmation should ordinarily be based purely on judicial qualifications, but these are not ordinary times. In this currently partisan environment, other factors are likely to take center stage. If a democratic nominee is confirmed, that likely spells the end of the 5-4 votes in cases decided by Justice Kennedy. The progressive wing will have a majority on the court. If nominees can be blocked long enough for a potential Republican appointment, that will likely result in more close cases, decided by swing vote.

The stakes are huge for the adult industry, and the country in general. In short, this development will dominate election politics in the short term, and carry significant implications for the development of constitutional jurisprudence for years to come.

Gill Sperlein, Law Office of D. Gill Sperlein:

If President Obama’s nominee is approved by the Senate, he or she will likely be a moderate at best.  If the appointment is held up until after the new president takes office, and Republicans maintain control over the Senate it will likely be a fairly conservative appointment.  If the appointment is held up and the Democrats win the presidency and the Senate than the nominee will likely be more liberal than any nominee President Obama could get confirmed now.  None of this is earth shattering.

Because Supreme Court justices are appointed for life and not beholden to anyone’s agenda but their own, it is difficult to guess how any individual will rule, much less an unnamed individual.  We learned this with justices like Warren, Souter, and even Kennedy.  It is virtually impossible to predict how an unknown individual will rule on a specific issue such as the First Amendment generally or porn specifically. Moreover, one could argue that Justice Scalia was more pro First Amendment than Obama-appointed Justice Keagan.  So I would not trust anyone who tells you they can predict how Scalia’s death will impact the adult industry.

What I find more interesting is how the status of the nominating process could influence the presidential election.  Certainly, an open seat on the Supreme Court will increase voter turnout.  Generally, a higher turnout favors the democrats.  I would look to President Obama appointing someone who would inspire high Democrat voter turnout – i.e. not a milk toast moderate likely to be more easily confirmed.  If such a nomination is rejected or pending, it will aid the Democrats against an already weak Republican field.  But in a world where the Left seems more and more willing to protect people from being offended, I don’t necessarily think even that will be good for the industry.

Joe Obenberger, J. D. Obenberger and Associates:

The constitution places an important condition on any president's ability to fill vacancies in the Supreme Court: It must be with the "advice and consent" of the Senate. The founders wanted the both a legislative body and the chief executive to each have some control over the Supreme Court. Both. It's a mistaken view of the Constitution to think that such appointments are a free entitlement of the president or that it is unpatriotic to oppose an unsound appointment out of philosophical step with the attitudes of the nation.

The U.S. Senate twice rejected President Nixon's appointments to fill vacancies in the Supreme Court. If the president acts unilaterally, without obtaining advice and brokering consent from the Senate, nominates a candidate, he should not be surprised when the Senate again rejects his appointment. That is the important role and duty of the Senators, to act as a check or brake on the president's power. The increasingly Imperial presidency just doesn't want to hear that.

There's a good chance that president and Senate will not agree on any nominee until after the presidential election in eight months. And there's nothing wrong with that. The old adage, "Marry in haste, repent at leisure" has some traction here. It's better to let the election become in part a referendum on the direction of the Supreme Court and to let the democratic process have some input. There are those in middle America who strongly feel that social policy reforms have been wrongly shoved up our society's tailpipe by the Supreme Court on a thin pretext of the constitutional rights of only one side of the debate while ignoring the personal religious beliefs of members of the other side of the debate. When logic and reason can lead to conflicting but equally rational interpretations of the Constitution, and where the societal effects are profound, it is not inappropriate for the citizenry to have a voice in how such a choice is made.

It's hard to imagine any likely democratic president making an appointment that is remarkably antagonistic to the  adult industry. It is just as hard to imagine Trump, who owns hotels with adult fare in the rooms, appointing a moral-do-gooder to the court. Cruz, Rubio, and maybe Bush might nominate a candidate who bears attitudes that that would harm the industry - and there are just not enough data points for the other Republicans to make even an educated guess. But honestly, does anyone think that any administration will vet candidates with a probing inquiry into attitudes about porn? Not likely. That attitude will be part of a broad package which the appointing president will find attractive.

Corey D. Silverstein, Law Offices of Corey D. Silverstein:

Regardless of your political views and whether you agree or disagree with his opinions, the U.S. and the world lost a brilliant mind today. Justice Scalia’s death was unexpected and will most definitely play a major role into this year’s election battle for the White House. President Obama will surely attempt to appoint a replacement for Justice Scalia prior to his exit as president of the U.S. but with a Republican-controlled Senate, I expect there to be substantial roadblocks placed in the president’s way. Justice Scalia has repeatedly been labeled one of the most conservative justices in the history of the U.S. Supreme Court. Justice Scalia was not short on his words when it came to issues such as supporting the 2nd Amendment (“right to bear arms”) and his displeasure with the Supreme Court’s majority decision to legalize same-same marriage. Justice Scalia also wrote a scathing dissent opinion in the case of Lawrence v. Texas, in which the Supreme Court outlawed penalties for homosexual acts, and I suspect that many who supported same-sex marriage and gay rights are not too upset about Justice Scalia no longer being on the Supreme Court. 

When it comes to the adult entertainment Industry, it is difficult to predict how Justice Scalia’s death will impact the Supreme Court given the fact that it is unknown whether President Obama or the next president of the U.S. will ultimately appoint the next Supreme Court justice. If President Obama gets his way, he would most certainly aim to appoint a more liberal justice that could have a substantial impact on future Supreme Court decisions; however, if a Republican wins the upcoming presidential election, then I suspect that a candidate with similar ideologies to Justice Scalia will be sought. Many in the adult entertainment industry may see Justice Scalia’s death as a positive in terms of future decisions impacting the industry, but I’d urge caution of thinking in that manner because it’s certainly possible of ending up with someone with similar ideologies or perhaps even worse.

Regardless, the world lost a very special mind today and everyone should take a few minutes to read or re-read some of Justice Scalia’s majority and dissenting opinions.

Marc Randazza, Randazza Legal Group:

Scalia was not friendly to the adult industry, and would normally engage in whatever legal contortions he could in order to rule against it. Nevertheless, I think that many of us see him as a one dimensional caricature, and forget that he (like all people) could be a complicated and nuanced individual. Brown v. Entertainment Merchants Ass'n and RAV v. City of St. Paul are two of the most speech protective decisions we have had in recent decades — both authored by him.

Allan B. Gelbard, The Law Offices of Allan B. Gelbard:

Justice Scalia's passing creates an opening on the court that must be filled by the president and confirmed by the Senate. We are already seeing the usual suspects on the right saying Obama should not be permitted to appoint his replacement. This is why elections are so important. Had the Democrats held the Senate in 2014, this would be a seismic shift. But with the Republican majority in the Senate, we are probably looking at a year of obstruction of Obama 's nominee(s). What could be very interesting is if Clinton or Sanders win, and if the Dems take back the Senate, Obama would make an excellent choice for the open spot. 

Karen Tynan, attorney at law:

If Obama is smart, he will nominate a well qualified woman of color. Tee it up for the Republicans to look bad opposing the nomination.