Censoring Online Pornography Is A 2024 US Presidential Election Issue

On July 2, the US Supreme Court granted an application for a writ of certiorari in the case of Free Speech Coalition et al. v. Paxton. The Free Speech Coalition (FSC), an advocacy group working on behalf of the adult industry (of which I am an individual member), and the parent companies of the most popular adult websites in the world – Pornhub, XVideos, and XNXX – are plaintiffs in the case.

Attorneys for the American Civil Liberties Union and the law firms Quinn Emanuel Urquhart & Sullivan and Webb Daniel Friedlander represent the adult entertainment stakeholders, led by the FSC. At the end of August 2023, FSC sued the state of Texas in a bid to block House Bill (HB) 1181. HB 1181 was adopted by the Texas legislature earlier that year, implementing a law requiring adults in the state to verify their age of 18 years or older to access age-restricted materials online, like adult tube sites and social media platforms.

Senior US District Judge David Alan Ezra of the Western District of Texas granted the plaintiffs' request for a preliminary injunction enjoining state officials from enforcing the measure during litigation. Counsel for the Texas Attorney General’s Office appealed the preliminary injunction to the notoriously conservative US Fifth Circuit Court of Appeals and secured a victory that far-right backed Attorney General Ken Paxton claimed was an “important” decision. Soon after, the ACLU took up the case due to First Amendment concerns related to age verification laws. Counsel successfully appealed the Fifth Circuit decision that Paxton celebrated to the Supreme Court after several civil society organizations filed compelling amicus briefs urging the high court to review HB 1181. This development is crucial, while oral arguments won’t happen until the next term.

A Tumultuous Political Landscape

These noteworthy legal developments occur on the backdrop of a tumultuous national election that, in one of its many subplots, deals with pornography’s role in the national culture. Former President Donald Trump, the Republican Party’s nominee for the November election, was found guilty of falsifying business records as a part of a conspiracy to cover up an affair he had with adult film star Stormy Daniels in 2006. Ironically, Trump’s playboy past has been overlooked, at times blindly, by millions of conservative Christians and members of the populist right-wing who detest the belief that “porn” is a legal form of speech.

Likewise, Trump’s running mate, Sen. J.D. Vance (R-OH), is a conservative darling and a MAGA convert with an extremely long track record of opposing the enactment and protection of the most basic of human rights for LGBTQ+ people, like the Equality Act. While running for his seat in the U.S. Senate, he additionally declared his obsession with the regulation of sexuality and bodily autonomy. Sen. Vance has openly called for a total ban on pornography to “protect” families.

Sen. Vance’s position on pornography and those who wish to see it outlawed during a potential second term of Donald Trump as the U.S. president is of this author’s most significant concern. That’s due to Project 2025 — the so-called “blueprint” for a conservative presidency if the GOP wins in the November election. Organized by the Heritage Foundation, Project 2025 is essentially the work of a coalition of groups that include right-leaning astroturfing organizations for large corporations and far-right pressure groups classified as hate organizations, such as Moms for Liberty.

A Far-Right Wish List

Kevin D. Roberts, the president of the Heritage Foundation, wrote the foreword in the Mandate for Leadership, a nearly 1,000-page document featuring the various policy proposals a Trump presidency could tout. In it, Roberts provides a glimpse at the ideological underpinnings of Project 2025 and what they view as the ideal national culture ruled under a conservative, imperial US presidency.

Roberts wrote, “Pornography…is not a political Gordian knot inextricably binding up disparate claims about free speech...It has no claim to First Amendment protection… Pornography should be outlawed.” Unshockingly, Roberts calls for even further action: “The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.”

What Roberts wrote here is one of the most significant concerns among journalists, the cable news punditry, civil libertarians, and LGBTQ+ rights activists. Beyond that, the fringe policy proposals in the Mandate for Leadership and espoused by Project 2025’s supporters are structured in a manner that would eliminate protections for bodily autonomy, reproductive freedom, and LGBTQ+ rights. These proposals further infringe on free speech rights by ultimately prohibiting internet searches for information about these topics and how to access certain care. For example, in several passages, Project 2025 calls for the use of “anti-vice” laws to restrict access to medications like the birth control drug mifepristone.

A pragmatic view on Project 2025 would hold that many of the “culture war” proposals, like banning pornography, are simple pipe dreams that would never pass constitutional muster in a state or federal court – even a conservative-leaning US Supreme Court. It would be a stretch, but given the events of recent years, especially in the judicial system, it wouldn’t be all that surprising for an emboldened minority of the far-right elite to try and impose horrendous and unpopular policy proposals on the majority of the country.

No Porn, No Freedom

The pollster YouGov reports that while most Republicans know very little or nothing at all about Project 2025, a plurality of all Americans opposes the project overall. Relating to the project's calls to ban porn, 42 percent of all Americans oppose while 42 percent support it. While the remaining 16 percent reported to YouGov that they’re “not sure,” banning porn is, in fact, historically an unpopular and authoritarian measure. That’s because “pornograhy,” like obscenity, is in the eye of the beholder. Inconsistent definitions of porn would be an issue. What is regarded as acceptable pornography to one person is obscene material to another.

As noted, Roberts and Project 2025 define pornography to be anything that is remotely sexual and is against their worldview of what’s acceptable: “recreational” sex, so-called “transgender ideology,” queer representation in children’s and young adult literature, or evidence-based sexual education in schools. In his foreword, Roberts used the term “transgender ideology” as an element of the supposed pornographic materials the radical left wishes to push on children. “Pornography” has always been the target of far-right and conservative religious movements as a means to discriminate against the LGBTQ+ community and limit the bodily autonomy of women.

With the rise of the ‘anti-porn warrior class’ (typified by figures such as Sen. Vance and Roberts), it’s a fool’s errand for them to say that efforts to “protect” children from porn are truthful. A ban on porn, regardless of whether the material is actually “porn,” would see a chilling of free speech and a rise in state-sanctioned persecution of innocent people not seen in the United States in decades. Culminating this, it isn’t at all surprising that some conservative groups and Donald Trump himself, however unconvincingly, are now disavowing the Heritage Foundation’s policy proposals to save face and reevaluate.

Disclosure: McGrady is an individual member of the Free Speech Coalition. He wrote this column without compensation or involvement of the coalition, staff, or members.