Good Cop Bad Cop: Corporate Political Strategy in the Porn Industry

By David Levy and Gail Dines.

California, the hub of the global porn industry, is considering regulations that would mandate not only the use of condoms during production shoots but also protective eyewear. Back in November 2012, voters approved Measure B in Los Angeles County, a ballot measure requiring condom use, despite strong industry lobbying against it. As part of this campaign, the industry promoted a satirical video suggesting that safety goggles and protective headgear would be next if the measure passed. But the health and safety issues affecting workers in the industry are not funny at all, given the nature of porn practices and the widespread presence of bodily fluids and fecal matter on production sets. The high prevalence of STDs and a recent outbreak of AIDS among porn performers highlights the seriousness of the situation, and after years of neglecting the health issues in this sector, OSHA is finally becoming more active.

Porn, a large and growing global industry (see Ch. 3 of Pornland by Gail Dines), has increasingly been flexing its political muscles to fight regulation it sees as costly to its interests, 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. The industry, which likes to portray itself as progressive and avant garde, actually behaves just like any other industry when it feels threatened by regulation. Recently it has been active in developing political strategies on several fronts.

The industry has been engaged in a particularly cynical campaign to undermine regulations protecting children. This could have global consequences given the dominance of the industry by a few large multinational distributors operating global value chains that increasingly rely on production sites in Eastern Europe and less developed regions of the world. In a blow to the industry this summer, 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 industry lobbying group, had challenged 2257 on First Amendment grounds claiming that the law is overly burdensome and “chills free speech”. It should chill the public that the FSC has promised to appeal this decision.

The porn industry-backed non-profit group Adult Sites Against Child Pornography (ASACP) spearheads the “good cop” side of the industry’s strategy to fight regulation and police itself. 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” and has led the “bad cop” fight against regulation, 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. Producers use a variety of methods to make female performers look much younger than 18, such as using young-looking females with pony tails, school uniforms, and surrounded by such childhood props as stuffed animals.

Following the Ashcroft decision, Internet porn sites featuring 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 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 the recent court case and California ballot result demonstrate, the industry cannot be trusted to look after the interests of children or performers.

David Levy, Professor and Associate Dean in the College of Management at UMass Boston and Director of the Center for Sustainable Enterprise and Regional Competitiveness, was an expert consultant in the Free Speech v Eric Holder Case.

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.