Give Stephanie Clifford her due. If Clifford, better known as Stormy Daniels, wins her fight to free herself from the dubious non-disclosure agreement she signed at the behest of Donald Trump’s attorney Michael Cohen, she’ll have scored a significant victory not just for herself, but for the principle of free speech. In doing so, she’ll earn a title many pundits would like to claim for themselves: She is a free speech champion, engaged in a very public battle for her right to tell the truth about her own life.
Daniels seems impervious to taunts, to financial penalties, to the risk inherent in challenging a corrupt president. Call it courage or stubbornness or a hybrid of the two—Daniels appears determined to talk about an alleged affair she had with the president in 2006, and the efforts by his associates to keep her quiet during the 2016 election. By insisting on her right to speak, Daniels, an adult film star, also enters a storied tradition within her own profession, which has often been at the frontlines of battles over the First Amendment.
While she may not be representing the porn industry in this particular instance, she is fighting the same stigma that has long clouded issues surrounding sex. In getting her to sign an NDA, Trump’s lawyer used a common legal maneuver to silence women—Harvey Weinstein, to name one example, used dozens of them to bury allegations of sexual harassment. Meanwhile, conservative critics have taken aim at Daniels’s credibility, suggesting that she is automatically untrustworthy because she is a “porn star.” And the president is using all the weight of his influence to keep her quiet, with his law firm seeking $20 million in damages for violating the NDA.
“Eventually, hopefully, I’ll be able tell my side, not for any kind of gain other than I want to be able to defend myself,” Daniels told a porn industry podcast.
“You’re not someone to keep your mouth shut,” said host Holly Randall.
“My name is Stormy for a reason,” Daniels replied.
Sex has long been subject to shifting definitions of “obscenity” and censorship. Trump’s recent alliance with the Christian right only makes the historical echoes more audible. His political partners still want to ban pornography. The Family Research Council calls it “a plague” and urges for stricter enforcement of obscenity laws. For the Heritage Foundation, porn is excuse to demand everything from the defunding of the National Endowment of the Arts to the removal of certain apps from the Apple store. “We must fight back against the purveyors of smut,” then-Heritage fellow Rebecca Hagelin declared in 2007.
In the U.S., most censorship hasn’t occurred under the aegis of political correctness. In fact, smut is one of the only forms of speech the government consistently regulates. The Comstock Act, passed in 1873, represents one of the earliest and most spectacular attempts to define and regulate obscene content. Named for Anthony Comstock, a guilty masturbator and moral scold, the law restricted the mailing of materials containing information on contraception and sex education. But the law’s reach extended much further than reproduction. It censored a number of authors—including D.H. Lawrence, whose novel Lady Chatterley’s Lover incited outrage. It banned the mailing of anatomy textbooks and erotica. The U.S. government reached directly into the private lives of Americans to dictate what speech they could express and what written and visual materials they could consume.
The legal definition of obscenity has changed since Comstock’s era, but the arguments against pornography have not. Anti-smut crusaders typically argue that porn rots the mind and erodes moral character, a view heavily influenced by religious feeling.
Anti-porn Christians gained new allies in the 1970s and 1980s, when second-wave feminists joined an emerging Christian right to demand pornography bans. Feminists noted that porn can be violent, and can exploit performers. But activists erred in trying to ban it altogether. As Sam Maier noted for Splinter, Catharine MacKinnon and Andrea Dworkin collaborated on draft legislation that would have prohibited porn “at the local level.” MacKinnon and Dworkin tried to dodge a free speech challenge by labeling pornography a form of sex discrimination, but that effort failed in courts.
They later found allies in the Reagan administration, and collaborated with the Meese Commission on Pornography. When the commission released its report in 1986, it recommended the protest and boycott of stores that sold porn, and urged Americans to form “watch groups” to make sure their environs remained porn-free. Those recommendations did not carry the force of law, but they illustrated a key flaw in the anti-porn movement: Pornography laws are always free speech matters. The argument to censor porn is an argument to censor speech.
As the Supreme Court has recognized, there’s clearly a case to ban porn that shows the abuse of children—a class that cannot consent to sexual activity—but banning porn that features adults is a far thornier proposition. Attempts to restrict porn necessarily put porn performers in a defensive position, where they must defend their own agency as thinking human beings—a situation Stormy Daniels finds herself in today.
Barry W. Lynn, who defended the porn industry from the Meese Commission as the ACLU’s legislative counsel in Washington, D.C., told me, “What I did learn and what I have connected to the Stormy Daniels story is that a number of women in the adult industry that I came to know either during that time or afterwards are very courageous women.” Lynn (who was later my boss at Americans United for Separation of Church and State) added, “They really refused to allow definitions like the ever present ‘porn star’ from asserting whatever it was that was important to them.”
Decades on from the initial porn wars, adult performers still mobilize politically to defend their interests. Sometimes it’s to defend their own rights on set from corporate bosses; on other occasions, the enemy is in government. The industry’s Free Speech Coalition, formed in 1991, lobbied vehemently against a proposed California bill that would have required the use of condoms on set; performers argued that measure was designed to stigmatize them, and that the industry’s strict testing regimen made the measure unnecessary.
The industry’s political activism hardly makes it an outlier. As a category, sex workers tend to be committed activists. Daniels’s disclosures come just as sex workers mobilize against a bill that would make it easier for authorities to prosecute websites that allegedly facilitate sex trafficking. Detractors, including sex workers, say the bill is so broadly written that it would lead to censorship, discourage start-ups from launching new websites, and actually eliminate safe spaces for workers to advertise their services.
And so Clifford vs. Trump feels inevitable. Not because Trump is a grubby entertainer on par with a “porn star,” as the media coverage often suggests, but because the adult film industry has often demonstrated the principles and pluck necessary to challenge a president. While porn is hardly free of corruption or abuse, any true account of its recurrent battle for free expression reinforces the notion that, when it comes to free speech, the rich and the powerful are who we really should fear. When silence is a commodity that anyone with enough capital and influence can buy, the right to speak remains fragile.