On November 5, 2024, American voters were called to the polls. The results of that election revealed an unquestionably uncomfortable truth for everyone, regardless of party or ideology: the “united” part of United States does not appear to be holding strong.
Yes, the Republican Party — currently in thrall to the populist MAGA movement with incoming president Donald Trump as its figurehead — was the winner of the election, and will be controlling the legislative and executive branches of the federal government following the Jan. 3 swearing in of the new members of congress and the Jan. 20 presidential inauguration. The unbreakable conservative majority on the U.S. Supreme Court — plus throngs of Trump-appointed federal judges — completes the power trifecta with a GOP-simpatico judiciary branch, ensuring decisive momentum for an expected rightward swing in decision making for, at the very least, the next two years.
But the impressiveness of that trifecta — actually the product of the Electoral College system, some very peculiar district-drawing practices at the state level and the controversial lifetime tenure of Supreme Court justices — hides the real result of the election, which was the confirmation that the country is hopelessly divided on how to move forward.
Of the more than 340 million Americans estimated to live in the U.S., a little over 150 million cast ballots on Nov. 5., out of around 240 million eligible voters. Among those voters, 77,266,801 (or 49.9%) chose Donald Trump, and 74,981,313 (48.4%) chose Kamala Harris. Adding other minor-party candidates, 50.1% of voters cast ballots against the incoming president.
The upcoming 119th Congress will be controlled by Republicans, the party’s slim majority reflects the sharp divisions that continue to characterize American politics. The Pew Research Center described the GOP’s expected five-seat majority in the House of Representatives as “the smallest margin of control in modern history.” In the more typically divided Senate, Republicans will enjoy a three-seat majority, plus the vice-presidential tie-breaker vote.
Unsurprisingly, this national division is also reflected in the U.S. adult industry. Although the fight against the religious conservative-led War on Porn tends to magnify liberal, progressive and Democratic-leaning voices within the industry, a sizable and sometimes vocal number of social and/or economic conservatives, libertarians and Republican-leaning professionals in the adult sector supported Trump and the GOP in the recent election.
With the dust of the heated 2024 campaign finally settling, industry stakeholders on both sides of the ideological and electoral divide must all ask the same question: What happens now?
Project 2025: Bark or Bite?
Trump will be sworn in on Jan. 20. If his previous inauguration day is any indication, he will immediately stage a photo op, sitting behind the Resolute desk in the Oval Office and signing a pile of executive orders prepared by his advisors. Whether and to what degree any of those executive orders — or the ensuing actions of the new administration, Congress and the courts — will directly impact the adult industry remains a matter of conjecture. As of the end of 2024, nobody can be sure.
All industry stakeholders have to go by, as they plan for the upcoming year, are the statements Trump made during the campaign, the statements and track records of those he appoints to run his new administration, and Trump’s own track record from his first term in office between 2017 and 2021.
Trump’s right-leaning supporters within the industry have most frequently invoked the latter as evidence of what Trump is most likely to do, as opposed to what his surrogates and appointees have called for — most notably under the auspices of the controversial Project 2025.
Assembled under the leadership of conservative think tank the Heritage Foundation, Project 2025 is a coalition of conservative organizations that produced a 922-page document titled “Mandate for Leadership,” intended as a road map for the next conservative administration.
“Mandate for Leadership” unequivocally declares that adult content “has no claim to First Amendment protection” and states, “Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.”
Members of the adult industry and sex workers have been warning about Project 2025’s sweeping censorship proposals since August 2023, when Dame magazine’s Brynn Tannehill first reported on the document.
A brighter spotlight fell on Project 2025 in the summer of 2024, after the Heritage Foundation’s firebrand leader, culture war crusader Kevin Roberts, went on Steve Bannon’s podcast and said, “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”
This prompted the Harris campaign to highlight Project 2025 as the de facto platform for an incoming Trump administration. Trump and his campaign staff denied repeatedly that they were connected with or even knew much about the initiative, though several prominent Project 2025 contributors were former Trump staffers, and Trump had vocally praised Roberts and his ideas before the incendiary Bannon podcast appearance.
In August, CNN reported that former Trump staffer and Project 2025 co-author Russell Vought had told undercover reporters that, after the renewed attention, the Heritage Foundation-led initiative had entered its second, more secretive phase with different tactics, including banning pornography “from the back door” through age verification legislation.
Three weeks after the 2024 election, Trump announced that he planned to appoint Vought to head the crucial Office of Management and Budget, the same role which the Project 2025 architect had fulfilled during the first Trump administration.
While those are undisputed facts, their interpretation has been heavily colored by the aforementioned ideological divide in the industry and the country. Many progressives in the industry take those promising to criminalize porn at their word, and are preparing for the worst. MAGA supporters in the industry, however, are quick to point out the lack of major obscenity prosecutions at the federal level between 2017 and 2020, plus Trump’s disavowal of Project 2025 after the Kevin Roberts podcast scandal.
There are also plenty of pragmatists who don’t disbelieve the intentions of the pro-censorship crusaders, but doubt that culture war matters will be prioritized as the new administration pursues what they expect to be a largely pro-business agenda.
Among non-doomsayers in the industry, a common mantra is: “Trump doesn’t really care about coming after porn. He will fix the border first, and also improve the economy through tax cuts and tariffs.” This contention is often coupled with anecdotal, wink-wink references to how the incoming president supposedly “loves porn stars.”
To help put things in perspective, XBIZ consulted industry legal experts and advocates about their forecasts and expectations for the second Trump administration.
Assessing the Risks
“While any new administration is unpredictable, I believe that an all-out assault on the adult industry will be fairly low on the list of priorities,” says industry attorney Lawrence Walters, of the Florida-based Walters Law Group, who runs FirstAmendment.com. “The president-elect has not made this issue a centerpiece of his campaign or discussed it in relation to his cabinet picks.”
But would active prioritization be even necessary? Like the authors of Project 2025, religious-right media voices and several prominent conservative politicians — among them, Vice President-Elect J.D. Vance and Sen. Josh Hawley of Missouri — have repeatedly suggested that no new laws may be necessary to come after porn. The Justice Department, they argue, could simply enforce existing obscenity statutes.
“Criminal prosecution priorities will be implemented by the attorney general — presumably Pam Bondi — along with the numerous appointed U.S. attorneys throughout the nation,” Walters explains. “While it is possible that those in the adult industry may be targeted in an effort to placate some conservatives, success will be difficult if history is our guide. The most recent efforts to pursue obscenity charges against adult producers, publishers and distributors ended with some embarrassing losses for the Department of Justice.”
Walters notes that prosecutors must still satisfy the Miller Test to obtain convictions for obscenity. Although the United States does not currently have a national definition of obscenity, jurisprudence has established the Miller Test, which has been a legal standard in federal courts for a half-century.
The Miller test, developed in the landmark 1973 case Miller v. California, establishes three conditions for determining “obscenity”: Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Walters predicts that efforts to enforce federal obscenity statutes would prove a daunting challenge “unless the prosecuted content is exceedingly fringe in nature,” as the Supreme Court has demonstrated no propensity toward changing the Miller Test or recognizing new categories of unprotected speech.
Industry attorney Corey Silverstein, who runs MyAdultAttorney.com and Adult.Law, is also counting on the strength of precedent.
“Although it’s never easy to predict how an incoming administration is going to act toward any industry in particular, in this instance we do have some historical context to rely upon,” Silverstein tells XBIZ. “During the first Trump administration, the adult entertainment industry was not a focus.”
A contrasting opinion is offered by Mike Stabile, director of public affairs for Free Speech Coalition (FSC) and a stalwart advocate for industry and sex worker rights.
“While the fight for our rights is an uphill battle in any administration, we’ve historically seen legal harassment and criminalization rise dramatically in more conservative administrations,” Stabile recounts, pointing to Nixon’s “War on Smut,” the insistent obscenity prosecutions under Reagan-era U.S. Attorney General Edwin Meese, George W. Bush’s obscenity task force and the 2257-compliance raids targeting adult producers.
“Perhaps notably, most of these were second-term initiatives, a reward to evangelicals and others who stood by embattled presidents,” Stabile adds. “So if you’re betting that a second Trump term will be as uneventful for adult as the first, I’d hold onto your money.”
This historical context is important, Stabile argues, given the turnover among industry players, especially performers and creators.
“Most of the industry wasn’t around for the earlier attacks,” he warns. “Many can’t comprehend what it’s like to have your business raided on a minor pretext or to be demonized at a press conference, be stopped at the border, have your assets seized or face multiple federal counts. I think a lot of the industry thinks, ‘If it does happen, it’ll happen to someone else.’ But history shows us otherwise.”
According to Stabile’s research, when the state is on the attack, it goes after big names and small distributors alike.
“They look for opportunity and they look for headlines, but they also look for wins,” he notes. “Often, those wins are less about securing a conviction than running you out of business or getting you to settle, often on dubious charges.”
The catastrophic threat of total financial destruction and personal ruin is familiar to long-time observers of the industry — or anyone following the Justice Department’s high-profile case against Backpage.com, during which $215 million in assets were forfeited to the U.S. government in a case essentially centered around forcing online classifieds to discriminate against sex workers. That case resulted in the death by suicide of one of the Backpage owners, and the dubious conviction of another on a minor money laundering charge, currently on appeal.
FSC board chair Jeffrey Douglas notes that similar situations have happened in the past.
“Years ago, there was a very dominant player in Minnesota and he was prosecuted for obscenity in his bookstores,” Douglas recalls. “They charged him with RICO and the government got a sympathetic judge, and he just forfeited everything. So he’s in prison and they had a book burning, with all of the videos and books that they seized in the store — books that were not judged to be obscene, but were forfeited because they were his property. They also went after his adult daughter, who had been in a terrible automobile accident and got a large settlement. They tried to seize that too. These prosecutors have no sense of proportion. There’s this self-righteousness that’s incomprehensible to me.”
That being said, Douglas does not foresee the kind of major attacks that occurred in the late 1980s and early 1990s, when the federal government went after dozens of adult companies.
“Nobody in the system wants it,” he explains. “FBI agents hate these kinds of cases. They’re embarrassed by them. They quite reasonably think that there are many more important things that they could and should be doing than sitting around watching dirty movies. At the end of the second Bush administration, they created an obscenity task force to focus on the internet. They handled only four cases — none on the internet. They couldn’t get a single assistant U.S. attorney to agree to be full-time assigned to the job. And that was back when the Justice Department was filled with people who had spent their career advocating for the prosecution of the adult industry.”
Looking ahead, Douglas is more worried about what calls “private-sector censors,” meaning newly empowered nonprofit groups like Exodus Cry and NCOSE.
“Those people have been around for a very, very long time, and now they have friends in the coming administration, so they’re going to be getting support resources to carry on their private censorship work,” he predicts. “They’re going to get a lot of help from the feds. In terms of potential litigation, that’s where the battles are going to be fought — and where business may be lost.
“Whether they call it ‘protecting the children’ or Making America Great Again, the bottom line is a war against human sexuality in every way that it manifests itself,” Douglas adds. “They fundraise off of that.”
Walters agrees that the industry could face significant headwinds, “should certain vocal special-interest groups seize the narrative and push their agenda.”
“It is not out of the realm of possibility that anti-porn legislation will be pursued by these groups and potentially adopted on a bipartisan basis,” he cautions. “If that happens, our firm, along with free speech allies like the FSC, FIRE, EFF, CDT and others, will be positioned to push back.”
Addressing the same scenario, Stabile tells XBIZ, “I don’t want to give anyone a playbook by getting into specifics, but FSC has spent the weeks since the election gaming out potential threats, likely targets and gauging our ability to respond. In the coming weeks and months, we’ll be engaging platforms and workers directly on these issues, so people should stay tuned and get involved.”
A Receptive Audience for Anti-Porn Crusaders
The media tends to spotlight Trump personally. So do both his supporters and detractors. Yet when it comes to anticipating potential challenges to the adult industry, focusing too much on how Trump himself feels about the subject may be a mistake, says FSC Executive Director Alison Boden.
In her view, the key players to keep an eye on are staffers and pro-censorship zealots in Congress, some of them working their way up the leadership ranks.
“Make no mistake: people who are the most motivated to harm our industry are part of the MAGA movement,” she warns. “And they now have the power to enact agendas that they did in the past, including attacking our industry.
Stabile sees several anti-porn Trump appointees and their congressional and judicial allies as an existential threat.
Speaking to fellow industry stakeholders, he warned, “These people absolutely do not believe in your right to exist. They think you are a social cancer. They are already blaming you for falling birth rates and mental health crises and trafficking — and, guaranteed, they’re coming for you.”
Boden observes, “I don’t think you have to look much further than Russ ‘Through the Back Door’ Vought. That man is going to be the gatekeeper of appropriations, and has a lot of influence in how policies are carried out and what priorities are. Point blank, he’s made it clear that one of his priorities is destroying adult entertainment. Does that mean that they’re going to ban porn outright? Probably not — but they don’t have to, if they can pass laws that simply make it impossible to operate.”
Boden points to a raft of such “stealth” bills floated by Capitol Hill’s top proponent of anti-porn censorship, Sen. Mike Lee of Utah — especially one that would require every website that hosts adult material to have all model releases approved by the attorney general.
“Every creator would have to cover every single sex act that happened in a shoot,” she explains. “Cover where every piece of that content can be posted, and for how long. It would allow consent to be withdrawn at any time. You may think, ‘That’s not commercially viable,’ and it isn’t. Mike Lee knows it, and that’s precisely why he drafted it that way.”
Boden also thinks the new Congress is likely to ramp up efforts to change or repeal Section 230.
“That would cause a lot of chaos for us, and I think that it would cause a further crackdown on sexual content,” she predicts. “Social media platforms cannot and don’t want to take the risk of civil lawsuits. If there was a carve-out of Section 230 for ‘obscenity,’ the same way that FOSTA/SESTA carved out ‘human trafficking,’ that would have serious implications — and not only for tube sites or other user-generated content sites. Obscenity is a RICO offense, so one piece of obscene content on your website could mean everyone associated with that company gets their house forfeited to the government in a wide-ranging RICO prosecution. This would be incredibly disruptive and dangerous.”
Walters calls the ongoing debate over reforming or repealing Section 230 “one of the most important issues at stake in the near future.” He sees attempts to tinker with Section 230 protections as dangerous, but remains hopeful that both the new administration and Congress “learn from the disastrous mistake made by passage of FOSTA, and resist the temptation to indirectly censor speech by removing Section 230 protections.”
“If new Section 230 carve-outs are created, we will need to fall back on the First Amendment to protect online intermediaries from liability,” Walters says.
Silverstein agrees that the Republican majority in both chambers, newly packed with MAGA die-hards and avowed culture warriors, pose a serious concern.
“Unfortunately, the anti-porn crusaders will have access to a larger audience through them,” he notes. However, he is not convinced that this change will result in substantial legislation, due to the checks and balances of the protracted, bicameral federal lawmaking process.
Walters concurs, noting that the Republicans’ razor-thin majority could make passage of any controversial legislation difficult.
“However, as we’ve seen in the past, legislation marketed as protective of children or trafficking victims is hard to oppose for lawmakers of either party,” he tells XBIZ.
Walters thinks it likely that bills with the potential to be used against adult industry stakeholders — such as the EARN IT Act, KOSA and the PROTECT Act — will be reintroduced. In addition, he says, industry attorneys are “on the watch” for attempts to use existing laws such as FOSTA, money laundering statutes, the Travel Act or racketeering prohibitions to threaten or prosecute adult companies.
He recommends that industry stakeholders “follow any developments closely and make their voices heard.”
A Tidal Effect on State Efforts
Exactly how Republican domination of the federal government will impact the adult industry remains at present a matter for speculation, but there is nothing purely conjectural about the ongoing, coordinated multifront campaign against the adult industry being conducted around the country at the state level. Legislation in multiple states has already forced some high-profile online porn companies — most visibly Pornhub — to shutter operations in those states under threat of liability connected to age verification practices.
“The states are the bigger concern, currently, and that will likely remain the case in the short term,” Walters confirms. “Age verification laws have created mass chaos for adult website operators, as they try to navigate the hodgepodge of differing and sometimes inconsistent state laws.”
The state and federal arenas are not mutually exclusive, however. Stabile cautions that the federal swing to the right could have a tidal effect on state efforts.
“During more progressive administrations, anti-porn initiatives often drop off because there’s a perceived lack of institutional support at the federal level,” he explains. “But these same people can feel emboldened when it’s clear, as I think it is now, that an attack on adult will be backed up. People like Russ Vought and J.D. Vance have openly called for bans on adult content. This is no longer a fringe element on the right.”
While religious conservative groups and sympathetic legislators have been fighting this battle state by state, many industry stakeholders are hoping the Supreme Court will stop or even reverse the recent wave of state age verification laws when it rules in Free Speech Coalition v. Paxton, the case challenging Texas’ controversial AV law.
Silverstein calls the upcoming SCOTUS decision “by far one of the biggest legal events that the adult industry has ever seen” and predicts that its ramifications will be felt across the entire industry.
Walters expects the case to be “critical in determining whether these laws are constitutional and what legal test they must satisfy to pass constitutional muster.” He remains hopeful that SCOTUS will render a decision that allows only for federal, rather than state, regulation of online activity under the Supremacy Clause.
“Then we can focus on ensuring any new federal law complies with the U.S. Constitution,” he adds.
Oral arguments before the Supreme Court in Free Speech Coalition v. Paxton are scheduled for Jan. 15.
Dark Clouds, Silver Linings
In the meantime, concern about the near future abounds.
Silverstein reports that since the November election, his practice has seen a substantial increase in clients wanting full legal compliance reviews of their businesses.
“Many have expressed concerns about potential new criminal legislation relating to content creation and distribution,” he says.
One already observable phenomenon is a noticeable chilling effect in some industry stakeholders’ willingness to express their opinions on the record about the upcoming administration.
“I’d rather not comment about politics at this time,” was the reply to a request for comment from a notable industry figure who had previously been open about their opinions on legal and policy developments.
Boden admits, “Our industry’s approach to dealing with politics is generally to keep our head down and hope not to be noticed and singled out. I think that’s certainly been the case since the election, perhaps even more so.”
Boden underscores that in the current environment, with adult companies concerned about being singled out, FSC’s work is more important than ever.
“Our job is to put our head out and represent everyone else to the government, in the media, in public, so that no individual company has that burden by themselves,” she says. “Companies that are concerned should absolutely get more involved with FSC, because we are your advocate.”
Stabile emphasizes unity above all.
“What’s important now is that we stick together,” he urges. “FSC was forged in the first of the first Bush prosecutions, when the DOJ was targeting individual companies and stacking charges until it got so overwhelming, so expensive, that companies took a plea deal. The way we’ve gotten through these challenges before, whether it was the obscenity busts, 2257 raids or the current age verification battle, is by maintaining a common defense.
“They want us divided,” Stabile says. “They want everyone for themselves, because they’re stronger that way. If we’re going to survive, we need to share resources and strategy. We need to stand firm.”
Yet Boden also notes that, in private conversations with important industry stakeholders and FSC members who support Trump, there is general consensus that his tax breaks will be ultimately good for business, and that Trump will be no worse for the industry than Harris would have been.
Boden points to at least one potential silver lining, involving financial discrimination against adult businesses and workers. She notes that one of the last things the Trump administration did before leaving office in 2021 was finalize the Fair Access to Banking rule in the Office of the Comptroller of the Currency.
“It essentially would have required banks to stop de-risking whole industries and make individualized risk decisions about every customer,” she explains. “Then Biden came in and immediately reversed it, because Democrats wanted to have that weapon against, say, gun manufacturers — which is incredibly short-sighted, because it also could be used against, for example, Planned Parenthood.
“In general, Republicans tend to take the attitude that a legal business should have access to banking, period,” Boden adds. “So if they prioritize a hands-off regulatory approach, this may benefit adult businesses.”
Silverstein also cites banking discrimination, telling XBIZ he is less worried about the Trump administration than about the tremendous amount of rule tightening and enforcement the adult industry has seen under the Biden administration.
“The number of platforms that have lost the ability to process credit cards or even hold a bank account has reached epidemic levels,” he points out.
Walters also puts the view from early 2025 in perspective by pointing out that the industry should be watchful however the political winds blow.
“There is no shortage of free speech violations regardless of who is in power,” he tells XBIZ. “Having fought these battles for over 35 years, we are ready for whatever they throw at us, in order to protect the First Amendment.”