The elections of 2012 are history. And the day after the results were in you could almost hear a collective sigh of relief from what has become an overly politicized and sharply divided America.
This post-election period cannot be more strikingly unlike its counterpart in 2008. After the last presidential election the nation was positively energized by the historic election of its first African American president and the end of the Bush Administration, despite the fact that it was in middle of the worst financial crisis since the Great Depression. This time around I’d say that the dominant feeling has been something like “glad at least that’s over with.”
Unfortunately, while I think the 2257 regulations are unconstitutional, and I certainly hope that the Free Speech Coalition’s efforts to judicially invalidate the law will be successful, they are still the law. Therefore, unless and until the 2257 regulations are invalidated, compliance is mandatory.
On Nov. 6, America voted and then it unceremoniously just got up to go to work the next day.
The more reserved response to this election is probably due in part to the fact that neither candidate seemed to generate the kind of enthusiastic support Obama received in 2008. This is not surprising given that an unusually large number of people polled said they did not feel that they could personally relate to either Obama or Romney. For many, I suspect, this election was like a choice between alien and predator.
But despite the relative lack of passion, and the anticlimactic ending of a much wider Obama victory than was generally expected, this election may well be one of the most politically earthshaking in decades. In fact, years from now it may well be remembered as marking a cultural and a social turning point at which the U.S. suddenly (and for many people, shockingly) realized that America had become a very different country than it once was. The elections showed that America is a country that is changing, and changing for the better, in my opinion, away from the kind of cultural conservatism that touts freedom from government regulation, except when it comes to regulating what kind of entertainment you can consume or what a women can do with her body.
The election’s take home lesson for politicians and sociologists is that the cultural and demographic changes at work in the country for decades are now beginning to dramatically affect political outcomes with an increasing degree of consistency. Obama’s victory marks the fifth time in six presidential elections that the Republican candidate failed to obtain a majority of the vote.
The key to President Obama’s clear electoral college victory was his advantage among the growing population of non-white voters. Because of the shunning of the Republican candidate by a majority of Hispanics and a supermajority of African Americans, Obama was able to win comfortably despite a historic rush of white male and white elderly voters toward Romney.
In fact, it is a sobering fact for rational Republicans that Romney lost after having run about as well as any Republican challenger has ever run among white voters. Romney’s 59 percent showing among whites exceeded the 56 percent that Ronald Reagan won in 1980, and matched the 59 percent that George H.W. Bush captured in 1988, and yet he still captured only 206 of the 270 electoral college votes that are required to win.
But while the voting trend data certainly shows why Obama won, perhaps more importantly for the adult entertainment business, is that it also shows why Romney and the arch-enemies of the adult industry, the cultural conservative wing of his party, lost, and lost big.
The writing is on the wall for the Republican Party. Their base is shrinking and the problem is almost certainly going to get worse. As African Americans and Hispanics increasingly account for a greater proportion of the electorate, it will become more and more difficult for Republicans to win presidential elections. This demographic trend will also significantly disadvantage Republicans in statewide elections as well, as the election of a supermajority in California’s state legislature has shown.
Compounding the Republican Party’s problem is the fact that young voters overwhelmingly tend to register as Democrats or independents, while elderly voters, the core constituency of the Republican party, are, well, dying off. And thanks to Romney’s and most other Republican candidates’ conservative positions on women’s issues, such as abortion rights and contraception, the Republican Party demonstrated in this last election cycle that it is also doing a smashingly good job of alienating the women’s vote as well.
What all this points to is a political party in decline because it has painted itself into an ultra-conservative political corner. It is a party that for several years now has gotten its leadership from a handful of loudmouthed, self-serving, conservative lynch mob life coaches like Rush Limbaugh, Sean Hannity, Glen Beck, Ann Coulter and Michelle Malkin. While following their pied pipers of conservative hate radio and “fair and balanced” TV, the Republicans have so radicalized their party that they have made term “moderate Republican” an oxymoron.
It is a shame, because the Republican Party, when it was able to tolerate moderate opinions, produced some great leaders like Teddy Roosevelt, Dwight Eisenhower and Ronald Reagan. And it is shameful that the talk radio hosts and Fox News have hoodwinked so many people in their hijacking of the Republican Party.
But as the greatest Republican president, Abraham Lincoln, once said “You may fool all the people some of the time, you can even fool some of the people all of the time, but you cannot fool all of the people all the time.” And now the Grand Old Party’s chickens are coming home to roost. Nowhere was there a better illustration of this, and Republican Party karma, than in this year’s U.S. Senate race in Indiana.
The election primary pitted tea party conservative hardliner Richard Mourdock against six-term moderate republican Sen. Richard Lugar. A two-time chairman of the Senate Foreign Relations Committee best known for his work on arms control and nonproliferation treaties, Lugar is widely acknowledged as one of the country’s most experienced experts in foreign policy matters. Lugar is also considered by his colleagues on both sides of the isle to be one of the Senate’s elder statesmen known for his ability to get things done through bipartisan cooperation.
Despite his extraordinary credentials and substantial seniority in the Senate after thirty-six years in office, the good republicans of the state of Indiana threw Lugar out in a landslide primary defeat to make Mourdock their standard bearer in the general election. Why would the republicans do this, you might ask. Well, apparently after nearly four decades of service, Lugar had the temerity to support Obama’s Supreme Court nominees Sonia Sotomayor and Elena Kagan. Well that kind of thing is just not tolerated by the tea party dominated Republican Party in Indiana these days, or by Sarah Palin, who vigorously endorsed Mourdock over Lugar.
Despite Lugar’s primary defeat, most political observers thought that his Senate seat would remain a lock for Republicans. But God had other plans, as I guess he often does for anything Sara Palin gets involved with. In a televised debate with his democratic opponent Joe Donnelly just days before the election, Mourdock who opposes abortion even in the case of rape and incest, said “even when life begins in that horrible situation of rape, that is something that God intended to happen.” In a close finish, Mourdock lost the election, and in doing so, he lost a Senate seat that no doubt would still be Republican if Lugar had been the party’s candidate.
Meanwhile, in another rebuking of cultural conservatism, Wisconsin voters elected the first openly gay U.S. senator in history, as Rep. Tammy Baldwin (D) clobbered former Gov. Tommy Thompson (R).
But the federal elections were not the only area that provided us with proof that America’s changing culture is playing out at the ballot box. Washington and Colorado residents voted to legalize recreational marijuana, while voters in Maine and Maryland chose to legalize gay marriage. The voters in these states sent a resounding message of cultural change to the cultural conservatives on Nov. 6. That message was perhaps best stated by, of all people, Bill O’Reilly, who said the election results communicate that “The demographics are changing. It’s not a traditional America anymore.” Well put Mr. O’Reilly, but maybe it was also a message from God to the conservative Bible-thumpers that maybe the voters in those states, and not the cultural conservatives, have a better understanding of scripture. Specifically, Leviticus 20:13, which states “A man who lays with another man should be stoned.”
Now, one would think that after the ass-kicking the Republicans got in the election, that they would be considering how they might moderate their party’s ultra-conservative and culturally exclusionary positions. But if irrational clan warfare, which is really what the Republicans have descended into, has taught us anything throughout history, it’s that reason doesn’t matter to those that believe that God is on their side ... and only on their side.
So let’s see how the Republican Party has reacted so far. Well, Romney has blamed his loss on voters that were allegedly bought off by Obama. Now, I may not be a political consultant, but I do know that you don’t win voter support by insulting them.
But the inappropriateness of Romney’s reaction pales in comparison to comments made after the election by conservative pundits. Almost to a person, their explanation of why their white ultra-experienced business genius guy got whooped by the black community organizer, in a country where 72 percent of the voters are white, and at a time when the unemployment rate is at nearly 8 percent, is ... get this, Romney wasn’t conservative enough! Talk about denial. It’s a good thing that our president has to be a natural born citizen of the U.S., otherwise I think these guys would try to nominate Atilla the Hun.
The Republican Party has so now effectively disrespected and alienated African Americans, Latinos, immigrants, Native Americans, and gays that Democrats lead in these groups by huge 40, 60, and even 80 point margins. And today’s typical republican congressperson’s or senator’s intractable, and often irrational positions on important issues have been, in my opinion principally responsible for a partisan attitude that has practically paralyzed governance at the national level. I am proud to say that my opinion is apparently shared by Lugar who posted on his website after his primary defeat the following regarding the attitude of ultra-partisanship in Washington:
“Republicans cannot admit to any nuance in policy on climate change. Republican members are now expected to take pledges against any tax increases. For two consecutive Presidential nomination cycles, GOP candidates competed with one another to express the most strident anti-immigration view, even at the risk of alienating a huge voting bloc.
“If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don’t succeed for long if they stop appealing to voters who may disagree with them on some issues.”
OK, the Republicans have become excellent foot shooting marksmen, but what impact will that likely have on the regulation of the adult entertainment industry over the next few years? Here are a few of my thoughts.
Federal Obscenity Prosecution
I doubt that there will be any new obscenity prosecutions initiated by the federal government under Obama. Additionally, since an obscenity conviction requires that a trier of fact determine that the material exceeds the community standards of the community from or to which it is sent, a successful federal obscenity prosecution for mainstream pornography, which is already quite difficult for the government to achieve, will become even more so over the next few years.
This is because mainstream adult content is available in abundance quite literally in every American community. And, thanks to a recent 9th U.S. Circuit Court of Appeals ruling obtained by our firm, an obscenity prosecution brought in California or any of the other far western states for material transmitted online will require that the “community” used must be the entire country and not just a small conservative community cherry picked by the prosecutor.
Simply put, the culture war’s obscenity battles over mainstream erotica at the federal level are effectively over. This is not to say that there will not be any obscenity prosecutions in the future. State initiated prosecutions of mainstream adult content are still a real and dangerous possibility, as are federal prosecutions for extreme and unusual pornography involving, for example, depictions of bestiality, excretory functions, necrophilia, rape or torture.
But when I look down the road four years from now to a point where there has been four more years of cultural transition away from cultural conservatism, to a time when there has been four more years of effectively unlimited distribution of hardcore material throughout the country in virtually every media without any government obscenity prosecutions, I just don’t see obscenity prosecution of mainstream erotica as a big priority at any level of government.
Enforcement of 2257
I doubt that there will be any inspections or prosecutions under the 2257 regulations under Obama and for as long as a democrat occupies the White House. But unless the regulations are invalidated judicially, I believe that they will remain as what I have often said is the government’s potential weapon of mass destruction against the adult entertainment industry.
So, unfortunately, while I think the 2257 regulations are unconstitutional, and I certainly hope that the Free Speech Coalition’s efforts to judicially invalidate the law will be successful, they are still the law. Therefore, unless and until the 2257 regulations are invalidated, compliance is mandatory.
It is also important to note that while I do not expect any enforcement of the 2257 regulations under Obama, prosecution for violation of the law is subject to a five-year statute of limitations. This means that any non-compliance with the regulations today or at any time during Obama’s second term could be prosecuted by the next administration. And while I think that the Republicans seem to be doing all they can to make sure that our next president is a democrat, it is also important to note that democrats have not held the White House for three terms in a row since Harry Truman was re-elected in 1948.
Federal Trade Commission Actions
Unlike the risks of prosecution for obscenity distribution or for 2257 regulations violations, the adult entertainment industry, particularly its online segments will, in my opinion, face a greater risk of action by the Federal Trade Commission in the coming years.
In Obama’s second term, and under future democratic presidents, I expect to see more aggressive action by the FTC to enforce consumer protection laws like the FTC Act (prohibiting unfair and deceptive business practices), the Restore Online Shoppers’ Confidence Act (regulating online cross-sales and use of negative option offers), the CAN-SPAM Act (prohibiting unlawful bulk email communications), and Telephone Consumer Protection Act of 1991 (prohibiting unsolicited voice and text calls to mobile phones).
If you are unfamiliar with any of the laws mentioned above or how they may impact your business please feel free to contact me at the number below. Additionally, articles I have authored pertaining to FTC regulations and the other laws cited above are available in the legal article archive XBIZ.com or by request from my office.
Conclusion
The 2012 elections point the way to a new era of American politics in which our country’s changing culture and demography is likely to continue to diminish the influence of cultural conservatism in politics.
Needless to say that this is good news for the adult entertainment industry, at least regarding the issue of future federal government activism in the area of criminal prosecution of mainstream adult entertainment companies for obscenity and 2257 regulations violations.
But as the adult entertainment industry seems to be winning its decades-long battle to be free from morality-driven governmental harassment, and treated like any other legitimate business, it is becoming more important than ever for adult entertainment companies to operate professionally and competitively, like any other successful legitimate business.
Thankfully, for the time being at least, adult entertainment entrepreneurs can now reasonably turn a greater amount of their attention away from concerns about morality-driven criminal prosecution by the federal government to more of the kind of creative and innovative endeavors that have made the American adult entertainment industry the biggest and best in the world.
Gregory A. Piccionelli is an intellectual property attorney specializing in adult entertainment matters. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.
