FCC General Counsel Channels Founding Fathers To Falsely Claim First Amendment Allows Banning Porn
from the the-censorship-police-are-getting-bolder dept
Another senior Trump administration official is gleefully showing off his true colors: The current general counsel for the Federal Communications Commission (FCC) published an opinion column with the Heritage Foundation’s news outlet The Daily Signal calling for stronger obscenity regulation.
From the Founding through most of American history, courts allowed the legislature to control pornographic material. Judicial reactions to internet pornography broke this tradition to our great detriment.
That’s by Adam Candeub, the general counsel for FCC chair Brendan Carr’s censorship regime. Among other things, he was the lawyer who represented the racist Jared Taylor when he unsuccessfully sued Twitter for being moderated. He also was a key player in the first Trump administration’s effort to get rid of Section 230. Lately, he’s been one of the driving forces behind model legislation that helped lead to mass adoption of age verification laws around the United States. Candeub also contributed the section on Federal Trade Commission (FTC) regulatory actions for regulating online speech to the public policy treatise for Heritage Foundation’s Project 2025 effort.
His resumé aside, Candeub’s latest contribution to wider discussion on free speech, pornography, and obscenity law is replete with culture war talking points of very little substance. He frames his arguments as a patriotic call to action referencing the founding fathers of the United States on the occasion of our country’s semiquincentennial year.
He says they would have “supported” stronger obscenity regulations and a resumption of obscenity prosecutions, echoing recent calls by figures in the religious right and anti-porn movements to do so. It’s easy to claim what people 250 years ago would have said or believed since they’re not around to defend themselves.
But a casual look shows that several of the founding fathers were not particularly pure or morally superior when it came to sex and relationships. Even if you look past their somewhat infamous extramarital affairs, Ben Franklin was famous for both writing and sharing materials that might not even pass the test for obscenity today. Thomas Jefferson expressed deep outrage at the concept of censoring literature based on religious morality tests. Writing to bookseller Nicolas Dufief in 1814 after a magistrate threatened prosecution over a controversial text, Jefferson demanded, “Are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy?”
These are not the actions of men who would quickly embrace anti-obscenity laws.
I wrote for Techdirt not too long ago about the National Center on Sexual Exploitation’s president and chief executive officer, Marcel van der Watt, calling pornography a “national security threat” and urging the Department of Justice to resume prosecuting alleged obscenity as a way to fight pornography’s accessibility.
Republican Sen. Jim Banks of Indiana also sent a letter to Trump’s Justice Department in May, arguing that the feds “[ending] obscenity prosecution was a mistake.”
This all matters, given that Candeub is expected to move to a top-level DOJ position soon.
His anti-porn screed is full of nonsense:
“Americans born after the mid-1990s have lived their entire lives in a world awash with hardcore pornography. Never has so much pornography been so available to so many at so little cost. Our laws leave much pornography effectively unregulated. Our technology, especially smartphones, brings portable, private porn shops to everyone’s phone.”
Aside from the clear misinformation about an “unregulated” pornography industry, Candeub proposes a supposed moral restoration of obscenity laws such that anything viewed through the lens of non-traditional sexual expression could be fair game for legislatures to heavily restrict or outright ban.
Much of his column summarizes a report he produced on the topic for the Heritage Foundation, which was published on July 6. The report is aptly titled, “Restoring Obscenity Regulation in an Internet Age.” It is replete with the same talking points from the most extremist elements of the anti-pornography movement who desire to ban all pornography.
He praises the Supreme Court’s decision in the case Free Speech Coalition et al. v. Paxton, which found that Texas could require age verification for online adult content, despite it going against previous Supreme Court First Amendment precedent.
The report also calls for the return of Comstock laws and the patchwork of anti-vice statutes that were historically used to prosecute individuals for “obscene” devices, the transmission of “prurient” content, and other prohibitions that lasted into the 20th century.
Most alarming, he views the high court’s 6-3 decision in the Paxton case as an optimistic but quite unclear step to modern Comstock prosecutions in state-level courts:
“Paxton may signal the reinvigoration of a dual-track approach to the regulation of obscenity: States can require oversight for minors, and mostly anything goes for adults. At the least, it is unclear what effect, if any, Paxton will have on obscenity for adults.”
He adds:
“The most optimistic result under current law would be a reinvigorated Miller with the national government again able to regulate the transmission of obscenity. The case’s flexible terms could allow for obscenity actions for internet-distributed pornography in state courts; the existing federal laws, specifically the modern version of the Comstock Act, prohibit obscene material from interstate transmission. Motivated state and local prosecutors could still get convictions in conservative communities, and national prosecutors could go against the big platforms like Google, which do not enjoy immunity from federal laws, for distributing obscenity.”
The bolded text is Candeub’s silver bullet. By his interpretation of the current Comstock law, the incumbent FCC’s general counsel is essentially calling for criminal prosecution for transmitting “obscene” web content across state lines because, well, the internet exists and it transcends borders.
This is exceptionally problematic for two reasons. First, Candeub works for the FCC and is backing a legal strategy that’s been used, historically, to aggressively prosecute women, LGBTQ+ individuals, entire communities of color, consensual sex workers, and pornographic and non-pornographic publishers for their speech.
This is the FCC presenting itself as the morality speech police.
Second, Candeub’s advocacy in this report and column conforms to Project 2025 and the Heritage Foundation’s call for the prosecution of “pornographers” who spread “the toxic normalization of transgenderism with drag queens and pornography.”
We’ve seen this idiocy before.
Candeub’s arguments are about far more than pornography. He is contributing, from his position as a top government legal official, to a much broader effort to revive long-discredited obscenity and vice legal doctrines and expand government authority over lawful expression and activity. All of this is done in the guise of “restoring public morality” and “protecting children” from a supposed cultural decay.
Coming from the lead attorney for Trump’s FCC, one of the architects of Project 2025, and a likely to be senior DOJ official, this signals a terrifying push forward towards a public policy agenda to enable greater and greater censorship by dubbing things like LGBTQ+ content and legal adult pornography as something that can be banned.
Michael McGrady covers the tech and legal sides of the online porn business.
Filed Under: 1st amendment, adam candeub, brendan carr, comstock laws, doj, fcc, free speech, fsc v. paxton, ftc, obscenity
Comments on “FCC General Counsel Channels Founding Fathers To Falsely Claim First Amendment Allows Banning Porn”
Time for someone to submit an FOIA request for Herr, sorry I mean, Mr Candeub’s browser history. “If you’ve nothing to fear, you’ve nothing to hide!”
Well something needs to be affordable in our society if it’s not going to be food, housing, education, energy, and other basic human needs.
Porn is, was, and always will be the canary in the censorship coal mine. Censors count on people being too embarassed about defending porn to stop censorship. If they take even the most innocuous pornography away from you—I’m talking Playboy pinups here—and you do nothing about it because “who wants to defend smut”, every other kind of speech is on the table. This really is a “first they came for” situation, so if you’re not willing to openly defend porn as protected speech, the least you can do is not openly support the censors when they use your triggers against you.
“Remember, pornographers have always been on our side. Brave, ready to fight for our rights. Smut is our friend.” — John Waters
Re:
I’m perfectly willing to defend smut. Smut is worthwhile.
But I’m not willing to defend conspiracy theories and political propaganda. Who wants to defend Republican Lies?
Re: Re:
COINTELPRO was a conspiracy theory. Then it was proven to be a real thing. Under your desire to censor speech, the theorizing about COINTELPRO prior to it being proven to have happened would’ve been censored. For that matter, one could argue that your desired censorship should’ve also silenced ���Epstein didn’t kill himself” and all the people theorizing about the Epstein Files before they were (largely but not entirely) released.
You should be wary of being on the side of the censors. Sooner or later, those leopards will see your face as their next meal — and no one will speak out in your favor to avoid having their faces eaten after yours.
I’ll make you a bet republicans.
If you can all stop fucking children, and you can stop shooting them in the face, then you can ban porn.
Fair deal?
So can they just start banning porn now? I don’t know what this means and it’s causing distress
Re:
First off, you might want to relax. Save the distress for when an actual porn ban proposal comes down the pipeline.
More to the point: No, the FCC can’t “just start banning porn”. If they tried, they’d be tied up in lawsuits for years from (at the bare minimum) free speech advocates and porn studios—and there would be no guarantee that the government would win those lawsuits.
That said, you should care more about what’s happening through non-governmental means of silencing porn. A threat of debanking as a means to control what content a site can host is more insidious than a government ban on porn because it (too) effectively routes around the First Amendment. The government isn’t demanding that banks and payment processors refuse to handle transactions related to adult-oriented content. That gives those institutions all the leverage they need to effectively debank adult content creators. The debanking of content creators based on whether they show titty and/or cock, which is happening right now, is more important than some right-wing shithead saying dumb bullshit. Pay attention to both, yes, but one matters more than the other right now.
Re: Re:
But that’s basically already happened with various age verification laws, because who the fuck is gonna upload government identification documents to every porn site they want to visit?
Re: Re: Re:
Age verification isn’t terribly hard to get around, be it by userscripts/adblocking, giving fake IDs, or VPNs. In the instances where it is hard to get around, yeah, that fucking sucks and we should fight it every step of the way. But just because Texas says “give us your ID if you ever want to watch PornHub again” doesn’t necessarily mean a Texan watching PornHub has handed over their ID. The trickier part of dealing with such laws will come when they strike at content creators by way of locking said creators out of the sites where they do business (e.g., Patreon).
Porn isn’t necessarily banned by age verification bullshit. I’m sure the lawmakers passing that shit would like you to think otherwise, but that would be playing into their hands. And yes, fighting those laws is also a good thing. But let’s not go losing our heads and proclaiming that the sky is falling just because someone in Texas has to fire up a VPN so they can tunnel their way into Bluesky.
Essentially the same reason why they also love using god so much.
Obscenity laws were extremely common in the past. Acting like we don’t know how they would treat them is kind of silly.
I know it’s hard to resist Founder worship in American politics, but the reality is, sometimes they were wrong (and/or hypocritical). They were human, and creatures of their time. You can just say that.
Re:
But the Founding Fathers weren’t one guy with one opinion. Michael states, specifically, that he is referring to “several of the founding fathers” (emphasis mine), not all of them, and names Franklin and Jefferson in particular.
That there were founders who would have supported obscenity laws does not contradict the premise that there were founders who wouldn’t. And that’s without getting into the legal weeds about complicating factors like the incorporation doctrine and community standards.
As the Title says
Can also be said about beating your wife, kids
And from any religion.
I know people’ve talked about how FSC v. Paxton wasn’t about banning porn, but I think statements like this reveal just how damaging both the ruling was and is. What they’re arguing for isn’t what FSC v. Paxton actually said on paper, but what the ruling Represents.
You can have people like Candeub claiming FSC v. Paxton said it’s okay for the DOD to, we’ll exaggerate, install a mind-reading satellite that will microwave the brain of anyone who thinks about boobs. Where the lawyers and people even vaguely familiar with the ruling are going ‘no it doesn’t, wtf’ and are scrambling to point this out, you already have people in positions of power going ahead with the plan. Certainly, let’s not pretend they’ll automatically succeed in doing so, but we’re still seeing how they’re performing that exact argumentative card trick.
We’re supposed to let the people who want to put pants on Michelangelo’s David and turn it into Michelangelo’s Dave because you can see his wiener define porn?
They want the porn ban because there are a lot of people whose existence in public life they want to declare pornographic. It’ll start with drag shows, trans people, gay people then women of colour, attractive women in general until Giliad is achieved.
Re:
And don’t forget the authoritarian hypocrisy kink.
Strictly holding we mere peons to rules/laws/morals that they themselves will violate without consequence is part of the fun for these twisted fucks.
Wonder what the founding fathers would think about a president who acts like he's a king?
If they really want to take the ‘the founding fathers were against porn so it’s acceptable to ban it’ route then I’m pretty sure the founding fathers would have much bigger objections to a number of things the regime is doing than they would pictures or videos naked people doing consentual but unspeakable things to each other.
This is exceptionally problematic for two reasons. First, Candeub works for the FCC and is backing a legal strategy that’s been used, historically, to aggressively prosecute women, LGBTQ+ individuals, entire communities of color, consensual sex workers, and pornographic and non-pornographic publishers for their speech.
..
Second, Candeub’s advocacy in this report and column conforms to Project 2025 and the Heritage Foundation’s call for the prosecution of “pornographers” who spread “the toxic normalization of transgenderism with drag queens and pornography.”
And therein lies the core of the issue: It’s never actually about the porn. Porn is and always has been merely the excuse to censor speech that the ones proposing the regulations or laws want to be censored but know that they can’t thanks to that pesky ‘first amendment’, obscenities like ‘people that aren’t straight, white CIS-men exist, are humans deserving of human dignity and rights, and have accomplished worthwhile things deserving of recognition and credit’.
Patrick Henry to Larry Flynt
Give me obscenity or give me death.