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