Bedfellows

The porn industry turns to K Street to fight Trump-fueled internet regulations

Lobbyists and adult entertainment may make, well, strange bedfellows. But here we are.

By HAILEY FUCHS

The porn industry needs protection. From Congress, that is.

A trade organization for the adult entertainment industry has hired a D.C. lobbying firm to build its relationships with lawmakers and to advocate on behalf of key policies that affect the industry. Most notably it is trying to beat back major changes to Section 230 of the Communications Decency Act — a shield for internet platforms that safeguards them from liability for what their users post. The provision has become a flashpoint for conservatives after former President Donald Trump seized on the issue as a means of firing back at the platforms that have policed his posts.

Like the large and powerful social media companies, the porn industry says that Section 230 is key to its ability to exist. The same law that protects Instagram and YouTube from being sued over illegal content posted by its users — such as threats or hate speech — also protects sites like PornHub and OnlyFans from their own unlawful content, like child pornography or revenge porn. But many lawmakers of both parties, who have yet to reach a broad consensus on what legislation should look like, want to strip parts or all of that protection away.

The Free Speech Coalition, a trade organization for the adult entertainment industry, has enlisted two lobbyists at Clarity Consulting, a D.C.-based lobbying firm: Keith Nelson, a former Republican Hill staffer and Bush White House alumnus, along with Shawn Delaney, a longtime lobbyist with Democratic ties. In doing so, it became the first group to register to lobby on behalf of the porn industry in Washington.

Nelson said that he signed with the Free Speech Coalition in June and would be paid $30,000 per quarter to lobby Congress and the executive branch, including the Treasury Department. So far, he has been meeting with lawmakers and their staff to address what he called “a huge vacuum of information” about the adult entertainment industry.

“If Section 230 is gone, we are not going to exist on the internet,” said Alana Evans, a pornographic actress and the president of a union for the industry’s performers who also serves on the legislative committee for the Free Speech Coalition. “Our workers vote, they pay taxes, we are strong members of our community. We deserve representation.”

Evans said that she and others in the industry had already met with staff for Sen. Ron Wyden (D-Ore.), Sen. Elizabeth Warren (D-Mass.), and Rep. Alexandra Ocasio-Cortez (D-N.Y.), primarily to discuss banking discrimination. Representatives for the industry, Evans among them, say that financial services companies have long mistreated members of the industry by refusing to do work with them, simply because of their profession.

But it is concern about changes to internet regulations that is likely to draw more and more web-based operations and platforms into the influence peddling game.

“Anybody that operates a platform that has any kind of user-generated content of any size relies on Section 230 on a pretty daily basis to limit the scope of risk that they have in terms of hosting user-generated content,” said Blake Reid, a professor at the University of Colorado Law School who specializes in technology policy.

Though Democrats and Republicans agree that Section 230 requires reform, they have different targets in mind. Many Democrats argue that web platforms have skirted responsibility for the dangerous content that they host. Republicans, meanwhile, have accused the social media giants of discriminating against conservative voices, spurred by Trump’s obsession with the provision — which only accelerated after he was booted off Twitter and Facebook during the final month of his presidency.

As a result, lawmakers have failed to reach any sort of widely-agreed upon consensus over what Section 230 reform legislation should look like. But the faceoff has created some remarkable fault lines: Trump and conservative lawmakers on Capitol Hill versus Facebook, Twitter, and porn.

The adult entertainment industry has historically been on the vanguard of internet law issues, said Eric Goldman, co-director at the High Tech Law Institute at Santa Clara University School of Law. He maintained that Section 230 benefits the smaller players — those who can’t afford powerhouse lobbying teams to defend their interests in Washington — far more than Silicon Valley’s tech behemoths.

“The adult entertainment industry generally has had a negligible voice in the political sphere,” he said. “Given the moralistic norms in politics ... having the adult entertainment industry weighing in was usually going to backfire.”

Though the Free Speech Coalition is new to Washington, the group dates back to the early 1990s, when it formed in response to a series of arrests of adult movie manufacturers. Back then, it was difficult to get a firm to take the Free Speech Coalition on as a client, said Jeffrey Douglas, its board chair and chairman emeritus of the First Amendment Lawyers Association. Still, the group became a force in California politics, where much of the industry’s production is located and where it built up a state lobbying arm.

The coalition successfully defeated efforts in California to establish a tax on the industry years ago. It also beat back a statewide ballot measure that attempted to force performers to wear condoms and won a Supreme Court case in 2002 that found the Child Pornography Prevention Act of 1996 — which banned sexually explicit content that appeared to depict minors who were not actual children — to be overly broad.

In addition to membership dues, the Free Speech Coalition is also raising money for its own lobbying fund. And unlike decades ago, K Street seems open to their business. Around the end of last year and the beginning of 2021, the group interviewed about six firms before settling on Clarity Consulting.

Nelson, for one, said he was no stranger to the “seven deadly sin realm.” He has also represented the Tobacco Vapor Electronic Cigarette Association, a trade association for the e-cigarette market, and the Hobby Distillers Association, a group advocating for the legalization of “home-based, hobbyist distillation of spirits,” according to lobbying disclosures.

The porn industry’s interests before Congress extend beyond Section 230. In recent years, it has found itself in the crosshairs of the #MeToo movement and faced its own reckoning after The New York Times published an exposé of PornHub, a massive website that allows users to post their own content, and its myriad of videos depicting child abuse and violence.

Nelson said that in the absence of information, those on the Hill seemed to “assume the worst.” But ultimately, he added, the objective was to “maintain that immunity for these platforms so that they’re not treated as a publisher for content.”