During the debates surrounding the Mueller investigation into possible Russian interference with the 2016 presidential elections, we heard a great deal about presidential use of “otherwise lawful powers.” There were those who thought President Trump had committed criminal obstruction of justice in his efforts to bring the investigation to a rapid conclusion. Trump had not done the sort of things that any private individual might do to obstruct justice, such as tampering with documents or concealing evidence. Rather Trump had done things that only a sitting president could do. He had used, or contemplated using, the powers of his office to cut short the investigation by, for example, firing FBI director James Comey.

This gave rise to the difficult constitutional question of whether Congress could ever make it a criminal offense for a president to use his otherwise lawful powers as president. Robert Mueller thought that Congress probably could. William Barr thought Congress probably could not. I tended to agree with the attorney general on this point.

This does not mean that the president is beyond any accountability for how he uses his powers. As both I and the attorney general emphasized, the proper places to hold a president to account for abuses of his otherwise lawful powers are at the ballot box and in a court of impeachment.

Alan Dershowitz and my Volokh co-blogger Josh Blackman have contended that “otherwise legal conduct” cannot become an impeachable abuse of power. Otherwise, they say, anything that an ordinary politician might do could place them in the impeachment crosshairs. They would extend the argument that government officers cannot be criminally prosecuted for otherwise legal actions to also hold that they cannot be impeached for such actions.

This is a very sweeping doctrine, and one that is at odds with how the impeachment power was discussed and applied from the founding to today. It is ultimately subversive of the constitutional system of checks and balances.

Presidents, as well as other government officials, are given vast discretionary powers. Some of that discretionary power can and should be pared back through statute, but a great deal of discretion is unavoidable and even desirable and quite a lot is directly vested in the president by the Constitution itself. We hope that officers will use that discretion wisely, but they might use it foolishly. They might even abuse it in a host of ways.

The question then becomes what can or should be done about officers who abuse their power, who act within the scope of their otherwise lawful power but who do so in intemperate, imperious, despotic, or dangerous ways. The effective answer offered by the Dershowitz theory is that one should wait until the next election—if there is a next election that is relevant to that particular abusive officer—and replace the officer. In the meantime, the country should simply suffer whatever damage the abusive officer is willing to mete out.

This is contrary to the very purpose of including the impeachment power in the constitutional scheme. The framers recognized that the president, and other government officers, might abuse the discretionary power with which they are entrusted and they might do so in ways that are simply intolerable. A president who brazenly granted pardons to minions who engaged in criminal activity to advance the president’s own goals should not be tolerated until election day. A president who categorically refused to cooperate in any way with congressional investigations into misconduct in the executive branch need not be tolerated for another four years. A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive. A president who rashly used American military power to assassinate American citizens and foreign leaders abroad or invited cataclysmic war need not be left as commander in chief. A president who stubbornly refused to use military force to protect American citizens and territory from foreign military aggression need not be left to serve out his term. A president who directed executive branch officials to use all available lawful tools to harass and intimidate their political enemies without any credible rationale for doing so need not be left in office to continue his campaign of governmental harassment.

It is not easy to impeach and remove any government officer, let alone a president. A partisan majority in the House of Representatives might be able to abuse the impeachment power and convert it into a weapon of factional politics. Convincing a supermajority in the Senate to do the same has proven to be an insurmountable obstacle to bringing such an abuse to fruition. The supermajority requirement in the Senate is the ultimate check on the congressional use of the impeachment power.

Congress too might abuse its discretion in exercising its lawful power. It might impeach and even remove an officer without adequate justification. Ultimately, it will be up to the voters to determine whether Congress has used the impeachment power inappropriately. But the constitutional framers believed that if accusers could convince a supermajority of the Senate that an officer has grossly abused his or her otherwise lawful powers, the nation would be safer if those electorally accountable representatives of the people could take steps to remove that officer from power before too much damage was done.

An impeached officer might offer a variety of explanations to senators to try to convince them to acquit. A president might claim that he was in fact acting in the public interest. A president might claim that he had not realized that such an action would be seen as abusive. A president might claim that even if the actions that he took were misguided and wrong, they were not so consequential as to justify an early end to his tenure in office. A president might argue that the type of actions in dispute can and should be considered by the voters at the next election. A president might claim that the abusive actions in question had already been remedied and presented no further danger to the nation. If enough senators are convinced by such explanations, they can vote to acquit and let the voters judge whether they have made the right decision.

What a president should not do—and what senators should not accept as a viable defense—is claim that the use of his discretionary authority, no matter how tyrannical or dangerous, is beyond the reach of the impeachment power.

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Here’s your obvious metaphor of the week: On Wednesday morning, a section of President Donald Trump’s expensive and “virtually impenetrable” border wall was literally blown over.

Police in Mexicali, Mexico, confirmed to KYMA that about 130 feet of newly constructed border wall “fell on the Mexico side of the border, landing on several trees.” Evidently, the sections had not yet been set in a concrete foundation. The Mexican government still isn’t paying for the wall, but at least Mexico’s trees are helping to prop it up.

That’s not the only loss Trump’s wall has suffered this week in its ongoing battle against Mother Nature. On Friday, The Washington Post reported that other sections of the border wall have huge holes, by design, to prevent flash floods from damaging it. Sources familiar with the wall designs tell the Post that the structure will act like a giant sewer gate during those periodic downpours, allowing water to pass through but causing rocks, trees, and other debris carried by the water to slam into it. To avoid potential damage, there 30-foot floodgates will be built into the wall, and the floodgates will be left open for months at a time during the rainy season.

John Ladd, a cattle rancher who has one such floodgate on his property—built into an older section of border wall constructed in 2008—tells the Post that he’s seen smugglers drive pick-up trucks through the openings.

What was that about “virtually impenetrable”?

As Ladd’s experience with that older section of wall indicates, these problems aren’t Trump-specific. They will afflict any attempt to build a physical barrier through the rugged and diverse geography of the U.S.-Mexico border.

These are well-known problems. As David Bier wrote in Reason three years ago:

A 1970 treaty requires that the floodplain of the Rio Grande remain open to both sides of the border. The Obama administration attempted to build fences along the river anyway, but the treaty and the river’s floods forced the barrier to be placed so far into the interior of the United States that it has many holes to allow U.S. residents access to their property. These also provide an opportunity for border crossers.

At the same time, the fence can cause Mexico to receive too much water. Even when a fence has holes, which a wall would not, debris can turn the fence into a dam. Thanks to the barrier, some floods have fully covered the doors of Mexican buildings in Los Ebanos, across the Rio Grande, while producing little more than deep puddling on the U.S. side. The International Boundary and Water Commission that administers the treaty has rebuffed the Border Patrol’s attempts to replicate this disaster in other areas of the Rio Grande Valley….

Border Patrol agents have told Fox News that a border wall would still “have to allow water to pass through, or the sheer force of raging water could damage its integrity, not to mention the legal rights of both the U.S. and Mexico to seasonal rains.” In 2011, for example, a flood in Arizona washed away 40 feet of steel fence.

Mother Nature, it turns out, doesn’t care about immigration policies or lines on maps.

If nature doesn’t destroy the wall, human beings will. Smugglers have already been spotted cutting holes in new sections of the wall, and there’s a long history of people gaining access to the United States by tunneling or catapulting their way in. More than 200 such tunnels discovered since 1990, and another one was found just this week near San Diego, California.

In a rare moment of admitting to reality, Trump has even conceded that “you can cut through any wall.”

Exactly. That’s why spending an estimated $60 billion on what amounts to little more than a presidential vanity project is so foolish.

Even if it didn’t get cut through or knocked over or otherwise circumvented, the wall wouldn’t do much to limit illegal immigration. Most illegal immigrants to the United States don’t hop the border; they land at airports and then overstay their visas. It also wouldn’t do much to stop the flow of drugs into the United States, because they’re mostly smuggled in through checkpoints.

The best way to reduce illegal immigration is to let more people into the country legally. And if you want to deter drug smugglers, your best option is to reduce their profits by legalizing drugs.

But of course, the true purpose of Trump’s border wall has little to do with drugs or immigrants. It’s a political symbol more than anything: a way to appeal to border hawks, a neat hook for the crowds at his rallies to chant. What does it matter if the wall can’t stand up to a gusty desert wind? The whole project has always been just a lot of hot air.

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Sen. Lindsey Graham (R–S.C.) has a plan to make social media and online messaging platforms do the federal government’s bidding. He thinks the feds should withhold those platforms’ protection from lawsuits if they don’t demolish their own encryption.

It’s cynical fearmongering all the way down with the Eliminating Abusive and Rampant Neglect of Interactive Technologies (or EARN IT) Act. The as-yet-unintroduced bill (which Bloomberg reports is a bipartisan measure) would create a government commission to decide what should be the “best practices regarding the prevention of online child exploitation conduct.” The attorney general would then review and modify these practices as he or she sees fit.

A year after these practices are determined, online services will have to certify that they are following them if they want to claim protection under Section 230 of the Communications Decency Act, the rule that generally protects them from liability for content posted by their users.

In other words: If the commission tells a tech company to do something (or not do something) and vaguely ties those orders to fighting child porn or child sex trafficking, any company that refuses will become legally liable for every stupid thing its users post on their platform or in their messages.

This is clearly an attempt to make platforms insert so-called “back doors” into the encryption mechanisms that protect our data. This will facilitate further secret surveillance of the citizenry—not just by the American government but by any other governments or independent hackers—for purposes that have nothing to do with stopping child pornography.

Indeed, everything related to transmitting images of child sexual abuse online is already against federal law. And online service providers are already required to pass along any information they have about such crimes to the feds; if they do, they’re protected from legal liability for having the messages. That process is handled under a separate part of federal law, not Section 230. The purpose of Section 230 is to protect online speech by stopping a parade of lawsuits from people and corporations trying to stifle critical comments.

“People are angry about Section 230, so the [Department of Justice] is seizing upon that anger as its opening to attack encryption,” writes Rianna Pfefferkorn of Stanford’s Center for Internet and Society. “I’ve been saying since 2017 that federal law enforcement agencies would take advantage of anti-Big Tech sentiment to get their way on encryption. Now the techlash is strong enough that they’re finally making their move.”

In short, Graham’s law would intimidate platforms into compromising your data protection in order to comply with anti-encryption demands. This wouldn’t do anything to actually fight the transmission of child porn, because Section 230 doesn’t protect sites that host or transmit child porn anyway. And the people who do transmit child porn are “highly adaptable to shifts in law enforcement strategy,” in Pfefferkorn’s words, so they’ll migrate to dark web sites where “they’ll be much harder to track down” than “when they’re using their Facebook accounts.”

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Republicans in Congress recently demanded that the Justice Department step up enforcement against online pornography, and their counterparts at conservative magazines and think tanks have been proclaiming porn’s evils with renewed vigor, with right-wing intellectuals like Sohrab Ahmari and Terry Schilling writing anti-porn screeds.

But Republicans have often demonized porn during elections or scandals. (The 2016 election cycle saw Republicans declaring pornography a public health crisis.) So are the bad old days of obscenity prosecutions coming back? Or are the current calls for a crackdown just another tawdry political show?

Last week I attended the AVN Adult Entertainment Expo in Las Vegas—an annual trade conference, fan meet-and-greet, and awards show in which much of the porn industry gathers to talk shop, show off their latest products, and assess the state of the business. The performers and producers I talked with told me they’re intimately acquainted with how hypocritical politicians tease their base by performing disgust at porn.

“Politicians have always used the porn industry as a topic to be raised during election years,” says Dee Siren, an adult performer and CEO of Siren XXX Studios, which brands itself as showcasing “only real women that love real sex!”

“In my experience, politicians enjoy porn in their personal lives as much as any other group of people—if not more,” says actress Maitland Ward, who collected three AVN Awards this year. “You should ask them why they feel the need to stigmatize sex workers during election years if it goes against what they privately enjoy.”

Amberly Rothfield, a clip creator, adult marketing consultant, and phone sex operator, suggests that progress on marijuana legalization “means that politicians need to show they are strong on other issues, leaving us.” Rothfield thinks the level of anti-porn sentiment in this country has stayed the same but the anti-porn crowd is “getting louder. Meaning, same amount of people but they are doubling down on those policies as other ground is being taken.”

While no one would say that renewed obscenity convictions are around the corner, prosecutions aren’t unimaginable.

“I think it’s unlikely that there would be a conviction for obscenity,” attorney D. Gill Sperlein said in an AVN session on the legal issues facing adult entertainment. But prosecutions are often “done for political gain,” he added, and in that case “they don’t care if they get a conviction or not.”

And political stigmas express themselves in many ways. Beyond the anti-porn culture war, adult entertainers and those advising them also have more immediate, practical concerns, like the effects of FOSTA, a 2018 law that’s had a chilling effect on online content related to sex, and new labor laws like California’s AB 5, which could upend porn economics.

Does Anyone Really Know What Obscenity Is?

The enduring legal problem for porn producers and performers comes down to a single word: obscenity. Obscenity is one of the few types of speech exempted from protection by the First Amendment. Yet it’s never been clear precisely what it means. Federal statutes contain no explicit definition of obscenity, and guidance from courts has been maddeningly subjective.

The current legal standard was set in 1973 by Miller v. California: Obscenity is anything “the average person” using modern “community standards” would think appeals to “prurient interests,” depict or describe sexual activity “offensively,” and be without “serious literary, artistic, political, or scientific value.” Some of the right-wing anti-porn jeremiads of the Trump era have called for ramping up the legal assault on porn, arguing that courts could take a much stronger line as to what constitutes obscenity.

“I don’t think the obscenity law works today because it’s based on ‘I know porn when I see it’ [and] that’s so meaningless, especially in today’s day and age,” says John Stagliano, who has the distinction of being the last person to face a federal obscenity prosecution for mainstream, professional porn productions. A judge dismissed the charges against Stagliano and his company, Evil Angel, in 2010. (Stagliano serves on the board of the Reason Foundation, the nonprofit that publishes this website.) Since then, federal obscenity units have kept to prosecuting sexual material featuring minors.

The two Bush presidencies were more aggressive about targeting porn that featured consenting adults. In 2005, the Department of Justice created an Obscenity Prosecution Task Force to go after “the distributors of hard-core pornography“—defined as any visual depiction of uncovered genitals or of sexual activity. “The special challenges that obscenity cases pose in the computer age require an equally specialized response,” said Christopher Wray, then assistant attorney general, on May 5, 2005.

Wray is now director of the FBI. And Bill Barr, now attorney general, oversaw aggressive obscenity prosecutions during the first Bush administration. That may help explain why some conservatives think it’s time to have a go at it again.

“Change is constant, and the laws are going backwards and forwards,” says porn director and star Steve Holmes, who has worked on adult film sets (and sometimes public streets) around the world. “You have to adapt. You have to adjust.”

But adjusting can be hard with an administration as unpredictable as this one.

“Any time a conservative politician starts thinking they’re going to lose” or needs “to rile up the basethey start thinking, ‘Well, where can we go that isn’t going to hurt our interests? And pornography is usually pretty high on that list,” Sperlein saidduring the legal issues panel. But “there is a distinct difference this time: Our president owns a string of hotels, and those hotels offer pay-per-view porn. So it’s probably less likely that [obscenity prosecutions are] going to be be an issue.”

Co-panelist Allan Gelbard, a First Amendment, intellectual property, and entertainment attorney, disagreed. “I was on board with that whole analysis of Trump before he was elected,” said Gelbard. “Seeing how he’s governed, I don’t think that idea holds water anymore,” because Trump likes to rile up his base “and his base would love it” if Trump went after porn.

A film being shown in hotels owned by the president may be a pretty good sign it’s not a violation of “community standards.”

But “they’re not going to prosecute the relatively softcore porn that’s in his hotels,” suggested Gelbard. “They’re going to go after things that are believed to degrade women, or other things like that.”

When I talk to him later, Stagliano agrees, suggesting that who winds up prosecuted is “more related to the disgust emotion” than rational analysis or public safety priorities.

Stagliano mentions director Max Hardcore, who was indicted on obscenity charges in 2007 for five films that featured fisting, pee, and vomit. The films got him three years and 10 months in federal prison. “Max Hardcore got put in jail because what he was doing looked disgusting to a lot of people, because it’s not normal sex,” says Stagliano. “Not that many people are going to stand up and defend any sex that’s viewed as being abnormal or not part of the mainstream.”

How FOSTA Paved the Way For Online Censorship

“The biggest fight is against stigma, the idea in people’s heads that sexually empowered women who choose to do sex work and porn are somehow ‘tainted’ for other social roles,” says Ward, who has appeared in a mix of mainstream television and adult entertainment. It’s this stigma that fuels destructive laws and agendas.

That includes laws like FOSTA (short for the Allow States and Victims to Fight Online Sex Trafficking Act). This 2018 law gives the government a new way to go after online content related to sex, by making it a federal crime to host web content that promotes or facilitates prostitution.

“FOSTA most definitely is designed to target, among other things, adult entertainment,” Ward says. “It’s censorship legislation,” making digital platforms legally liable “for having content that is very vaguely defined and subject to the random whims and attitudes of officials.”

Vagueness is one of FOSTA’s big problems. It fails to differentiate between sex trafficking and prostitution. It fails to distinguish between conduct and speech. And it wraps the whole package in language so muddled and penalties so severe that web platforms have an incentive to crack down on all sorts of sexually-themed content.

“Even though I am not a full-service sex worker”—that is, someone who engages in sexual activity directly with private clients—“I have had to deal with the censorship that came along with FOSTA,” says Allie Even Knox, a fetish performer who also works as vice president of sales at the Ethereum-based payment processor SpankChain. It’s “limited me [in] services that I need to have for my business,” such as email list management and photo storage, because many popular sites won’t accept accounts related to sex.

Knox tells me her Instagram account has been shut down three times, even though she doesn’t post nudes, and so has “every single cash app that you could imagine, and even a crypto wallet.”

“Even though I was just accepting tips or tributes through the system, or selling panties or content, whatever, the platforms have taken a much tighter stance and will shut you down merrily for existing,” she adds. “This bill has made it much harder for me to accept payment for my legal work.”

On the night of the AVN Awards, as the guests of honor walked the red carpet, someone circled the periphery holding a sign that said “I want sex workers rights! Not awards” and, under that, “Fuck FOSTA. Fuck SESTA.” (SESTA is the acronym for a similar bill that started in the Senate, and the bill that passed is often called SESTA-FOSTA.)

Porn performers and workers in other legal sex industries sometimes strive to distance themselves from criminalized sex work such as prostitution. But Kaytlin Bailey of the group Decriminalize Sex Work, which is pushing to remove criminal penalties for prostitution in several states, says the group’s booth got a good reception at the AVN Expo.

“We are all stigmatized as sex workers,” says Bailey. “There are a lot of people here that told me that SESTA-FOSTA was the thing that got them to contact their senator or the first time, or got them to vote or pay attention to politics.”

On the legal issue panel, Sperlein said he hopes prostitution decriminalization will follow the path of cannabis in the U.S. “People really do believe that the government shouldn’t get involved in what people do in their personal lives,” he says. “It may not be that easy, but I’m hoping that it follows that trend.”

He’s been working with a group of advocates and a California lawmaker to get a decriminalization bill—and research to back it up—ready for 2021.

“Officials are often lobbied by religiously motivated groups that consider all sex work to be ‘human trafficking’ and all porn to be ‘exploitation,'” says Ward, commenting on FOSTA. “But I’m not worried too much because Americans love freedom and hopefully they can see censorship for what it is.”

Will California’s Gig Economy Law Be Porn’s ‘Armageddon’?

Porn faces another legal threat. A.B. 5—California’s new law regulating the gig economy—is “armageddon in some ways” for the state’s porn industry, said longtime AVN writer Mark Kernes on the legal issues panel.

Many adult entertainment companies rely on talent and crew employed as independent contractors, not full-fledged employees. And for porn performers these days, it’s the norm not just to contract with one or more studios but to make money via webcamming, video clip sales, and other online platforms. Having multiple income streams that don’t depend on a few big gatekeepers makes the work safer and puts performers in more control.

A.B. 5, and the copycat legislation it’s spawning in other states, threatens that.

These laws are presented as ways to protect workers from being taken advantage of by companies who get a significant number of hours out of them without classifying them as full employees. But in practice, they take options away from freelancers, consultants, gig workers, and independent contractors, who are now limited in their options, while giving companies no incentive to suddenly hire all their contractors and incur huge additional costs.

A.B. 5 “could reclassify any performer working for a studio as that studio’s employee, no matter how many different studios you shoot for,” warned the Adult Performer Advocacy Committee and the Free Speech Coalition in pamphlets handed out at the AVN Expo.

Because A.B. 5 contains exemptions for business-to-business relationships, the groups suggest performers form their own corporations in order to continue to be allowed to be paid as an independent contractors. “Your employer would now have a contract with your corporation instead of with you as an individual,” they explain.

Rothfield points out that “exceptions are being written in for cam performers and the like,” but A.B. 5 “has made many adult sites feel they have to hire cam girls as employees to be compliant,” which “leaves many part time cammers scared about their income.”

Bascially, laws like this make it harder for porn performers to work as independent contractors for multiple platforms, giving them less leverage and fewer options and creating greater risk for exploitation.

The Right to Look at Stronger, Crazier Stuff

Despite the current climate of panic and fear surrounding “sex trafficking” and, by extension, all forms of sex work, we’ve come a long way on this front from just a few decades ago.

As an example: When Good Vibrations founder Joani Blank first tried to place ads for the company in the 1980s, she could “not buy ads in most places,” author and educator Carol Queen told a crowd at an AVN panel on sex tech. “She couldn’t even in Playboy—Playboy rejected her ad. And then the same year, Ms. Magazine, the magazine of record for modern feminism, rejected it.” Just “getting the word out” about anything related to sex was difficult, Queen said.

Some people say we’ve come too far.

As a father, Stagliano says, “I understand why the public is concerned and wants the government to step in and make it somewhat harder” to access porn online. But he also believes “it’s my responsibility to control what my children look at.”

Adults should have “the right to choose to look at stronger, crazy stuff” if they wish, he adds.

Whether these rights persist depends on breaking down stigma, Rothfield argues. She hopes to see more people “come out of the ‘new closet’ and admit to being sex workers in the past and show politicians just how many of us are. Adding them to our numbers, I believe is the only way to ensure our rights do not get trampled on.”

The advent of accessible, low-budget ways to create adult content, combined with the proliferation of ways to distribute that content, has revolutionized the porn industry for performers in a way that’s only starting to be realized. And according to those in the industry, it stands to bring even more positive changes—if government can get out of the way.

“The far right—just like in the ’80s—wants a war on everything, including a war on porn,” Siren says. “But we will not go away and will fight for our freedoms.”

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