If Roe v. Wade is overturned, as the leaked Supreme Court opinion deemed, current fabrics of modern American life will be unwoven. Abortion rights are at risk, and people fear that cases about rights to contraception and marriage can be overturned next.
Perhaps less on the public's radar, however, is the potential threat the draft opinion poses to the right to access and produce pornography.
Roe v. Wade upheld the right to an abortion via one's right to privacy which not only is protected by several amendments (the First, Fourth, Fifth, Ninth, and Fourteenth, according to law archive Oyez), but has also been utilized in Supreme Court cases beyond the 1973 decision. If that precedent is no longer there, however, Americans' digital privacy could be at risk — including for people who make and watch porn.
One such case where this right was cited is Stanley v. Georgia, which actually pre-dated Roe by four years. When police searched through Robert Stanley's home for bookmaking (betting) materials, they found reels of pornographic film. The Supreme Court decided that, given the right to privacy, Stanley was allowed to own porn in his own home. He was also protected under the First Amendment right to freedom of expression.
"The same general legal principle in Roe applies [to] any sort of sexual expression that you might possess in your home," explained Mike Stabile, a representative for Free Speech Coalition, a porn industry lobbying group.
If Roe is struck down, can other settled court cases like Stanley be next?
Sex worker advocates and porn industry experts say that overturning Roe can be a slippery slope. "The biggest immediate risk is that, as with abortion, zealous state prosecutors will start picking battles that previously would have been thought unwinnable constitutionally," said Stabile.
An example he gave is an adult creator working from home in a conservative state. "There's much more of a risk that you could be arrested, or that legislators will begin to police your right to create in your home," he said. "In the past, that would have been an assumedly unwinnable case, an infringement on free speech. But now? Who knows."
Of course, this is all speculative. As of now, Roe v. Wade is still the law of the land. Further, online porn wouldn't be erased overnight should it happen, Stabile said.
Still, the possibilities are chilling. Overturning Roe would disrupt the porn industry and online sexual expression overall — even more so than how it's been disrupted by legislation, tech companies, and credit card companies in recent years.
"It is important to contextualize what we are seeing with Roe as part of a growing web of criminalization of bodily autonomy impacting the health and welfare of marginalized people and communities, including sex workers," said Danielle Blunt, a dominatrix and organizer with Hacking//Hustling, "a collective of sex workers, survivors, and accomplices working at the intersection of tech and social justice to interrupt violence facilitated by technology."
"All bets are off," said Stabile. "It's tremendously frightening."
Challenges to freedom of expression
The First Amendment protects our right to receive ideas, Stabile said, not just to express them. "It's our right to access information," he said. "It's right to access and read whatever it is that we want to do."
We're already seeing this right flouted in schools. Conservatives challenged hundreds of books last year, many of which highlighted Black or LGBTQ experiences. The memoir Gender/Queer, for example, was labeled "pornographic" by Republican officials in North Carolina, South Carolina, Texas, and Virginia. What is "obscene" or "pornographic," however, aren't fixed categories, said Stabile. Many readers don't find Gender/Queer pornographic, despite what others think.
Stabile also pointed to a recent bill introduced in Louisiana that would allow parents to sue publishers and distributors if their child accesses sexual content as an example. "Like the abortion laws, it's using civil penalties and enforcement to try and get around constitutional protections," he said, "but the chilling of speech is still the same."
In addition to book banning, officials have also challenged the freedom of expression with recent legislation.
FOSTA-SESTA, passed in 2018, was supposedly anti-sex trafficking but actually resulted in one federal trafficking prosecution in its first three years, according to the latest report by the U.S. Government Accountability Office. Meanwhile, social media giants like Facebook have pushed consenting, of-age sexual content and thus sex workers to the margins. Sex workers report that their posts are often removed and accounts deleted or shadowbanned, a term when social platforms block someone's posts from being seen by others. This all hurts sex workers' livelihoods. Further, by deleting people's accounts and posts, thus blocking communications within the community, FOSTA-SESTA also cut off harm reduction education like discussing labor exploitation, according to Hacking//Hustling.
"Sex workers are already living the reality of what state and corporate surveillance can mean for someone," Ariel Wolf, writer, sex worker, and researcher with Hacking//Hustling, told Mashable. "Online sex workers have to put a significant amount of work into separating their online personas from their official identities as a matter of personal safety from clients, but also from carceral [police] action."
Soon after the Roe leak, privacy experts stated that search histories and other data may be used to track people seeking abortions. This "presents a new level of danger for anyone using the internet to circumvent harmful laws," said Wolf. "Online sex workers are already aware of how hard it can be to navigate this, but this evolution in abortion criminalization threatens to make the internet a much more dangerous place."
"In both the cases of abortion and sex work," she continued, "[personal] information is being used to perpetuate a carceral patriarchal agenda of punishing what are seen as 'bad women.'"
FOSTA-SESTA is also not the only bill that would impact digital privacy. Months before the Supreme Court leak, the EARN IT Act was reintroduced to the Senate after being first introduced in 2020. EARN IT is a surveillance bill that seeks to kill end-to-end encryption, technology that scrambles data to keep it private under the guise of stopping child sex abuse. Its opponent say this would allow private companies and governments to scan our websites, messages, clouds, and other online materials. What's more is that EARN IT could actually make it more difficult to find child abusers, wrote research scholar at the Stanford Internet Observatory Riana Pfefferkorn.
If EARN IT passes, the ramifications for sex workers and others would be worse than FOSTA according to Maggie MacDonald, a Ph.D. student at the University of Toronto researching pornography platforms. If our private content could be regulated, then criminalization to the sex work community including porn creators may only increase.
This is all happening under Roe v. Wade. Should Roe end, internet privacy could be at an even bigger risk.
A scary present, a scarier future
FOSTA-SESTA altered Section 230, which the Electronic Frontier Foundation called "the most important law protecting free speech online." It's a part of the United States Communications Decency Act that states that platforms can't be held responsible for the content users upload. Now, due to FOSTA-SESTA, that doesn't apply to sex work-related content. EARN IT would further carve out Section 230 protections.
On top of these bills, Republican Rep. Marjorie Taylor Greene wants to end Section 230 full-stop.
Up until now there's been a "cold comfort" that many of the Section 230 proposals that have been put forward in Congress would be deemed "blatantly unconstitutional," said Stabile. That doesn't mean such a repeal wouldn't cause loads of damage — for sex workers and the internet overall — but ultimately, it could get overturned by the courts.
Now that Roe is in question, that cold comfort is gone.
"In this current legal environment, that's not necessarily something that you can count on," said Stabile. In a post-Roe world, experts fear Congressional chipping away at Section 230 is more likely to stick.
Stabile also believes that those who are anti-porn and anti-sex work — such as groups like National Center on Sexual Exploitation (NCOSE) and Exodus Cry — would be emboldened by the overturning as well. "Prior to this, there was no energy to bring those cases [to court]," he said, "because there was no sense that they would actually rule in your favor." If Roe is gone, however, that could change. Anti-porn groups could potentially challenge cases like Stanley v. Georgia, and others that protected free expression.
"A very conservative court and a very conservative section of the population are well positioned to roll those rights back," Stabile continued.
Should the court roll back rights protected by Roe "nothing is safe," said MacDonald. It would "set a precedent for other forms of sexual expression and sexual pleasure and sexual pursuit being vilified."
"Even now," MacDonald continued, "if you are someone who isn't [into] white heterosexual missionary sex — if what you're into is, like, blood play — you already don't really have the right to access that material," said MacDonald.
This is due to the aforementioned entities and yet another one: credit card companies. Last year, Mastercard established rules explicit websites must follow in order to be accepted by the provider. Some sites, like OnlyFans, made sweeping changes including banning some BDSM and kink content.
At that time, adult content creator and BDSM model Zoey Sterling told Mashable that OnlyFans had wiped pages of performers who showed spanking, let alone harder kinks.
If Roe ends and EARN IT gains traction, MacDonald believes it will only encourage censors and moderation that's already occurring. Whatever is outside the "charmed circle" of sexuality — a term in feminist theory that refers to cis-heterosexual married people having sex for procreation — is deemed wrong by conservative groups. This belief is seen in the moral panic about both porn and abortion, MacDonald said.
"That means that pleasurable queer sex just for the sake of sex and intimacy and connection is not okay, damaging," she said. "It's a threat to the nation."
These frightening changes haven't been set into motion yet. But if anything has been made clear by the Supreme Court leak, it's that our privacy and ownership of our bodies — offline and on — are in danger.
UPDATE: May. 19, 2022, 10:38 a.m. EDT The piece has been updated to correct a quote from Mike Stabile about Section 230.
Topics Porn Social Good
