Page 30 - AVN March 2016

LEGAL NEWS
to look only
”It’s misguided
over your Right
shoulder when
it comes to First
Amendment
issues, and
especially adult
entertainment
legal issues.
Marc J. Randazza is a Las Vegas-based First
Amendment lawyer who frequently writes on First
Amendment and intellectual property issues. His
LL.M thesis on “Freedom of Expression and
Morality-Based Impediments to the Enforcement
of Intellectual Property Rights” expands on this
article. Download at Papers.ssrn.com/sol3/papers.
cfm?abstract_id=2716892.
COMMENTARY | STOP, THIEF | |By Nate Glass
| By Marc Randazza
2016 Presidential
Race: A Closer Look
Which candidate is best for the adult industry?
to the favors of the Bible-thumping-set.
This is not to say that Trump is good on First
Amendment issues, in general. He seems to be the
candidate most likely to wield power to shut down dissent,
as he frequently threatens his critics with defamation suits.
A president like that might find some common ground
with Justice Kagan, who seems to believe the protections
provided to us under New York Times v. Sullivan might be
worth re-examination. Therefore, Trump is not the First
Amendment’s best friend, but he has revealed no beliefs
that suggest he would be anti-porn. In fact, his constant
rejection of “politically correct” culture suggests that while
he might be bad for the First Amendment overall, he very
well might give a pass to porn producers.
What about the other Republican candidates? Given
how many are still in the race, we don’t have the column
space to talk about all of them, but what about those who
are at least serious, as of the time of this article? President
Cruz has very much courted the religious kooks, therefore
you can rest assured that his Department of Justice
will look a lot like George W. Bush’s. You can certainly
expect obscenity prosecutions and a renewed interest in
inspections under 18 U.S.C. § 2257. If you didn’t like the
Bush years, then you won’t like President Cruz.
Rubio? The Florida Senator seems to be willing to court
the Religious Right as well, and he signed on to a letter
complaining that the Obama administration was not tough
enough on the porn industry.
But, that letter was not a Republican-only affair. A total
of 42 senators signed on to it, including seven Democrats.
And therein lies the problem. The Democrats are not
necessarily friends of the First Amendment, nor are they
necessarily friends of the porn industry. In fact, I know
a few devout Mormons out here in Nevada. Mormons
are typically stereotyped as being “anti-porn,” and the
Mormons I’m referring to personally despise porn. But,
you know what? They also very much support the First
Amendment, and the pornography industry’s right to
publish what it likes. They just want to convince people
to stay away from it. That’s called “the marketplace
of ideas.” Meanwhile, so-called “Liberals,” including
Dianne Feinstein and Bill Nelson, called upon the Obama
administration to crack down on porn.
So what do you think a Democrat will do once in office?
Fair enough that Obama’s DOJ has been largely “hands
off” when it comes to porn. But, it isn’t as if they dropped
the obscenity prosecutions they inherited from the Bush
administration. They kept pressing for jail time for John
Stagliano and Ira Isaacs, when it would have been just as
easy, and constitutionally proper, to drop the cases.
So what about President Clinton or President Sanders?
Do you think they’ll be hands off? I doubt it. One of
Clinton’s main campaign platforms is that she is the
only candidate with a vagina. Personally, I don’t think
Continued on page 32
At this year’s Adult Entertainment Expo, some of the Adult
Entertainment Industry’s top lawyers gave their views on the
2016 election—universally agreeing that a Republican president
will be bad for the industry. Those quoted attorneys, J. Michael
Murray, Paul Cambria, Jr., and Allan Gelbard, aren’t just brilliant
attorneys—they’re some of my personal heroes and good friends.
But, I have to be candid when I say that I think they’re wrong on
the politics.
It is misguided 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 during those long eight years.
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 they do on
the Right.
Would President Trump be particularly anti-porn? He has made
no such statements, and has not appeared to be the moralizing
type. Sure, in 2013, he had Miss Delaware Teen USA resign her
crown because she appeared in a porn video. That seemed to come
more from a brand-management perspective than an anti-porn
perspective. Let’s face it, it will be difficult for a guy who owns
the rights to pageants that trade in women parading around in
bikinis to have the moral authority to turn anti-porn. Further, most
anti-porn politicians have been that way because they felt it was
necessary to pander to the religious Right. Trump, on the other
hand, seems to have yielded that color of the political spectrum to
his Republican competitors. If he is elected at all, it will not be due
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