With the midterm elections just a few weeks behind us, there is a veritable concern among adult industry professionals and firms with the prospects of regulation in the next session of Congress. Results from the midterm place the entirety of the United States in a position to enter a two year-long (at least) period of divided government. Amid the current socio-cultural climate of the U.S., this will be a very tough two years for advocates of online speech, the adult entertainment industry, sex worker’s rights activists, LGBTQ rights activists, and more.
The Associated Press verified first that the control of the U.S. Senate will remain in the hands of the Democrats. Republicans now have control of the House of Representatives after the right-wing party failed to initiate a “red wave” to claim both houses. Nevertheless, a divided government is at hand. The unified agenda of the Biden administration and the Democratic leadership of the House and Senate will face an uphill battle with a Republican majority, featuring lawmakers who are accused of election denial, anti-LGBTQ views, advocating violence against at-risk communities, calling librarians and educators “groomers” for teaching comprehensive sexual education, and other issues. Among these controversial political figures to watch, a few come to mind. Rep. Lauren Boebert, for one, won on a narrow margin versus moderate Democratic challenger Adam Frisch in her rural Colorado district. An election denier criticized for anti-LGBTQ rhetoric, Rep. Boebert will likely face a profile elevation among other right-wing populists and old-guard Republicans afraid of her.
Boebert represents a congressional district near Colorado Springs, Colo., the large metro area that witnessed a mass shooting incident at a local LGBTQ nightclub recently. This is mentioned because the district where Colorado Springs is located is represented by Rep. Doug Lamborn — a long-time Republican representing an area that is surrounded by a diverse but extremely conservative community, due to the presence of at least five U.S. military installations, including the U.S. Air Force Academy.
Considering the makeup of these districts, Boebert and Lamborn signed on as sponsors to a measure introduced by Rep. Mike Johnson, R-Lousiana, to prohibit federal dollars from being used to make “sexually-oriented” materials available to the nation’s children under the age of 10 years. The Hill noted that this proposal also targets so-called “drag queen story hours.” The Colorado Sun observed more recently that local lawmakers, including Boebert and Lamborn, “have amplified anti-trans rhetoric,” across the state and the country. Johnson was re-elected as the vice chair of the House Republican Conference, and is expected to maintain a significant hold over the GOP-held House.
Johnson’s proposal, the “Stop the Sexualization of Children Act”, which has no chance of passing under the current Democratic leadership and Speaker Nancy Pelosi, D-California, would likely be reintroduced to more favorable ears in the new session, once the gavel of the Speaker is handed to the leader elected by the majority. The House under Republican control could pass this legislation and it would likely be killed in the Senate because of the Democratic majority still held there. Nevertheless, Johnson’s Act could be used to further implicate adult content as a part of the broader moral panic related to “grooming content” supposedly taught to minors all over the country. Many conservatives have taken up this rhetoric, in particular lawmakers representing constituencies from Florida (Rep. Matt Gaetz), Georgia (Rep. Marjorie Taylor Greene) and Texas (Rep. Glenn Grothman), among the GOP’s other controversial figures.
All of this is relevant as it relates to the challenges of members of the adult industry. Johnson is a member of the House Judiciary Committee. The current GOP House Judiciary Committee ranking member, Jim Jordan, R-Ohio, is poised to become the new chair of the committee, which holds broad oversight power over government and certain elements of private industry.
According to a recent Bloomberg Law report, Jordan is expected to target social media companies and other technology policy stakeholders in a bid to further the debunked theory that large tech firms suppress on their sites viewpoints held by conservatives and far-right figures that might run counter to the corporate cultures and terms of service for many of these tech firms and their proprietary, private platforms.
Jordan is expected to investigate tech companies for their business practices to determine whether there is “proof” behind the conspiracy theory that tech giants like Meta-owned Facebook and Instagram censor conservative viewpoints. Jordan is also expected to move toward reintroducing his Protect Speech Act, which would further gut Section 230 of the Communication Decency Act of 1996 and eliminate the safe harbor provisions that immunize online platforms from liability due to the posts and viewpoints of third-party users. The safe harbor also grants platforms a right to self-regulate and conduct content moderation operations, no matter how backward or broken these policies are.
Even though the Protect Speech Act would likely fail in favor of a Section 230 reform proposal from the Senate, or fall on deaf ears among members of both chambers, Jordan’s proposal could cause further scrutiny to be placed on adult platforms that rely on Section 230 and the protections from liability for the actions of third party users, including users and publishers of exploitative, illegal sexual visual content. The new GOP-held Congress also presents the ideologically-conservative U.S. Supreme Court the opportunity to seek legislative justification to gut Section 230 in the benchmark case Gonzalez v. Google, which questions the law’s vital safe harbor protection of web content algorithms.
On the Senate side, the Democrats hold a slim majority serving as a much-needed check and balance to the far-right shift of the Republican Party. Sen. Mike Lee, R-Utah, introduced a bill a few weeks ago called the PROTECT (Preventing Rampant Online Technological Exploitation and Criminal Trafficking) Act. YNOT reported on the PROTECT Act, pointing out that the legislation is extremely “broad” and “vague.” Lee’s office introduced the legislation by citing a series of columns written by former New York Times opinion contributor and failed Democratic candidate for Oregon governor Nicholas Kristof and misconstrued and misreported data from the federally-chartered and reputable National Center for Missing and Exploited Children. The bill is an anti-porn screed in the guise of humanitarian and anti-sex trafficking response. This proposal, even in the upcoming session of a divided Congress, is unlikely to succeed. But, the House GOP will likely lend a safety net for Lee’s bill, which is also another partisan justification to try and limit or completely repeal Section 230 of CDA.
From the Democrats, expect a series of bills that will be presented as fixes to Section 230 to curtail social media’s protection of hate speech. EARN IT Act, proposed and stalled twice by bipartisan sponsors, will be reintroduced at some point as well, most likely in the form of another catchy name that strikes fear and communicates urgency. The EARN IT Act has been panned by right-wing and left-wing civil society groups alike for targeting privacy rights and the Section 230 provisions providing safe harbor and immunity for online platforms, including adult platforms.
The final two years of President Joe Biden’s first term are up for referendum, as the next major election is the 2024 presidential race. Biden, who will be the first U.S. president aged over 80 years old while in office, hasn’t eliminated the idea of running for a second term.
Donald Trump, the controversial former Republican president who instigated the 2020 election denial conspiracy theory, has announced his run for a new term. He is facing pushback from several GOP establishment politicos and pundits saying that he will likely lose, and harm chances for Republicans to win in 2024. Ron DeSantis, the controversial Governor of Florida, responsible for a slew of anti-LGBTQ and anti-online free speech legislation and initiatives, is viewed as a probable frontrunner. Nikki Haley, the former governor of South Carolina and U.S. ambassador to the United Nations who served as an antagonizing mouthpiece for Donald Trump, is also a potential contender.
Capitol building image by Kendall Hoopes from Pexels
