Porn Is Protected Speech. Trump’s New Presidency Will Test That Sentiment. The Courts Can Uphold It.
The die is cast. Donald Trump is heading back to the White House - a remarkable victory. But a lot of people who work in the adult entertainment industry are understandably scared. From the concerns for LGBTQ+ rights under the new Trump presidency to access to reproductive care at a state and national level, the next four years will be a significant challenge.
While all valid concerns that I share, it is the specter of the Heritage Foundation's Project 2025 agenda that frightens me most. Previously, I've written across various outlets, like Techdirt, to address the masculine policy" Trump and his new vice president, Sen. J.D. Vance of Ohio, and his allies envision to make America great again." Kevin Roberts, the president of the Heritage Foundation and the de facto head of Project 2025, a so-called presidential transition project," laid out the administration's position on key culture war issues, such as access to online porn.
Roberts wrote in Mandate for Leadership: The Conservative Promise, Project 2025's incendiary policy treatise nearly 1,000 pages long, that their camp believes pornography" and pornographers" should be imprisoned and stripped of First Amendment protection. Some folks have characterized Roberts' words as simply rhetoric, but the past twelve months have verified a coordinated effort to significantly claw back the rights of all sex workers and adult industry firms.
This time around, Donald Trump has surrounded himself with outspoken Christian nationalists who want to demonize and then criminalize sexual expression that is otherwise protected by the First Amendment.
Russell Vought, one of the central architects of Project 2025, was caught on hidden camera a few months ago confirming that the efforts to ban porn will go through a so-called back door" framework via a patchwork of state-level age verification laws and efforts in a newly GOP-controlled Senate. In addition to that, Vance has supported a porn ban. It was also under Donald Trump's last term that the FOSTA-SESTA monstrosity that decimated legal sex work on the internet came to fruition. Imagine what will advance under Trump.
Expect to see a renewed effort to advance the Kids Online Safety Act or a beefier version of the bill. The current form of the bill, though supposedly reformed with the input of key LGBTQ+ groups, would make design code the law of the land in an affront to years of case law. As we've seen in California, age appropriate design mandates rarely hold up under strict scrutiny. But, relying on the history of FOSTA-SESTA, the Kids Online Safety Act in any form will be a legal flashpoint.
For example, when the Woodhull Freedom Foundation and other civil society organizations sued to render FOSTA unconstitutional, the appeals court in that case, though upholding it, affirmed that it's overly broad and needs to be narrowly tailored to best address cases of online trafficking while respecting free speech rights. And it's up to the courts to essentially hold a Trump presidency accountable for any sort of unilateral action taken against legally operating pornography platforms.
The conservative-leaning U.S. Supreme Court is, truly, the only check and balance on key freedom of speech issues moving forward when it comes to the next four years. And it begins in January. Oral arguments are scheduled in Free Speech Coalition et al v. Paxton for January 15, 2025. The American Civil Liberties Union took up the case due to expansive First Amendment implications associated with age verification laws like Texas House Bill (HB) 1181, which specifically targets online adult website operators with requirements to verify the age of users who navigate from local IP addresses. Existing case law suggests that a law like HB 1181 is unconstitutional and clashes with other rulings.
If the Free Speech Coalition is successful, this renders all other age verification laws that specifically target porn websites and require users to submit ID cards or other types of identity verification unconstitutional.
A win at SCOTUS for online speech could set the tone for a successful series of legal victories during Trump's imperial presidency. That is all we can hope for, right?
Michael McGrady covers the tech and legal sides of the online porn business.