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A Rare Defeat for Corporate Lobbyists

Corporate lobbyists suffered a major defeat recently when Philadelphia-based US District Court Judge Michael Baylson upheld federal regulation 2257, which requires pornography producers to maintain documentation that performers are at least 18 years old. The Free Speech Coalition (FSC), the porn industry lobbying group, had challenged 2257 on First Amendment grounds claiming that the law is overly burdensome and chills free speech.

This case highlights how porn has become big business, flexing its political muscles to fight regulation it sees as costly with wanton disregard for the consequences. At the same time, like other industries confronting controversial issues, the porn industry has tried to burnish its public image by promoting itself as a good corporate citizen that can be trusted to self-regulate.

Nowhere is this cynical behavior more blatant than in the case of the porn industry-backed non-profit group Adult Sites Against Child Pornography (ASACP). ASACP was founded in 1996 by the porn industry and claims that it “battles child pornography through its CP Reporting Hotline” and is “dedicated to online child protection.” Yet the same industry has spent many years trying to undo the very regulations that attempt to shield children from being exploited.

The FSC, a non-profit that is “the trade association for the adult entertainment industry,” is actually in bed with the ASACP. Both organizations have similar membership and funding from porn industry players across the value chain from producers to online distributors and webmasters. For example,
Manwin, the largest multinational porn conglomerate in the world, was the FSC Benefactor of the Year in 2012 and the only diamond donor to ASACP. XBIZ, a major porn industry association, held a joint fundraiser for FSC and ASACP at its awards ceremony in January 2013 at the Hyatt Regency Century Plaza in Century City. FSC itself is a member of ASACP.

Why is the overturning of 2257 such a priority for the porn industry? To answer this, we need to go back to 2002 when the Free Speech Coalition had its first major victory, in the Ashcroft vs. Free Speech Coalition decision. Arguing that the 1996 Child Pornography Prevention Act –  which prohibited any image that “is, or appears to be, of a minor engaging in sexually explicit conduct” – limited the pornography industry’s free speech, the FSC succeeded in narrowing the law to cover only images of actual minors. The path was cleared for the porn industry to use legal-age performers but make them look much younger.

Following the Ashcroft decision, Internet porn sites featuring young (and very young-looking females) exploded, and the industry realized that it had hit upon a very lucrative market segment. Our research demonstrates that “teen porn” has grown rapidly and is now the largest single genre, whether measured in terms of search term frequency or proportion of web sites. A Google Trends analysis indicates that searches for “Teen Porn” have more than tripled between 2005-2013, and teen porn was the fastest-growing genre over this period. Total searches for teen-related porn reached an estimated 500,000 daily in March 2013, far larger than other genres, representing approximately one-third of total daily searches for pornographic web sites. We also analyzed the content of the three most popular “porntubes,” the portals that serve as gateways to online porn, and found that they contained about 18 million teen-related pages – again, the largest single genre and about one-third of the total content.

The pornographers use a variety of methods to make female performers look much younger than 18. In place of the usually large-breasted, heavily made-up women that populate much of Internet porn, teen porn sites are filled with young-looking females with petite bodies, small breasts, makeup-free faces with hair in braids or pony tails, surrounded by such childhood props as stuffed animals, bed sheets with flowers, and backpacks with cartoon-character motifs. It is not uncommon for the females to wear school uniforms, have braces on their teeth, and knee-high socks as they engage in hardcore sex.

The age documentation requirements of 2257 represent a key component of a legal struggle to prevent child pornography, especially in an age of fragmented and globalized production. Even though enforcement has been lax and software packages to manage 2257 compliance are available, the industry claims that it’s all too expensive and burdensome. Like the garment industry facing outrage over sweatshops, the porn industry wants to self-police. This “just trust us” approach helps resolve the paradox of the good cop–bad cop strategy of the industry’s twin non-profits, ASACP and FSC. If the industry wants to self-police, it needs to win the public’s trust that it can act with social responsibility AND challenge governmental regulation. But as Judge Baylson ruled, when a powerful industry is willing to do whatever it takes to maximize profits, self policing is not enough.

Gail Dines, a Professor and Chair of the Department of American Studies at Wheelock College in Boston, and author of Pornland: How Porn Has Hijacked our Sexuality , was an expert witness in the Free Speech v Eric Holder Case.

David Levy, Professor and Chair of the Department of Management and Marketing at U/Mass-Boston and Director of the Center for Sustainable Enterprise and Regional Competitiveness, was an expert consultant.

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