Analysis: Could X Going Pro-Porn Subject It to Anti-Porn Laws?

SAN FRANCISCO—X, the mainstream social media platform formerly known as Twitter and acquired by eccentric billionaire Elon Musk, has formally announced that adult and sexually explicit content is allowed on its website. This is simply a formality for some, given that X has proven to be one of the only mainstream social media platforms to allow NSFW content. The new X adult content policy states, "We believe in the autonomy of adults to engage with and create content that reflects their own beliefs, desires, and experiences, including those related to sexuality." Such an institutional position runs counter to Musk's opinions and use of the platform. In recent years, Musk has aligned himself with far-right Republicans who are on the record in favor of age verification requirements and advocating for outright bans or restrictions on otherwise First Amendment-protected forms of expression, like pornography. For example, Musk has found an unlikely ally in Texas Attorney General Ken Paxton. In November 2023, Paxton initiated an investigation into a progressive news media watchdog group, Media Matters for America, after Musk filed a lawsuit against the organization. Media Matters was accused by Paxton of "potential fraudulent activity." Being that Media Matters is very critical of politicians like Paxton and of Musk allowing far-right influencers on his platform, like neo-Nazis, Paxton's investigation was simply regarded as overt political intimidation tactics. This is just consequential of Musk's persona as a free speech "purist," however. Paxton continues to defend a controversial state law that requires social media platforms to not self-regulate or moderate content that might be regarded as politically incompatible with terms of services and the corporate culture of sites like Facebook and Twitter under Jack Dorsey. A trade group representing social media platforms, NetChoice, challenged the law, resulting in a case that was heard alongside a similar case involving NetChoice that recently saw oral arguments held at the U.S. Supreme Court. AVN has reported on these cases because the implications of the high court's ruling could impact the body of First Amendment case law that deals with freedom of expression on the internet and the role of safe harbor laws, like Section 230 of the Communications Decency Act of 1996. Paxton has maintained that tech platforms have a systemic bias against conservative and far-right political viewpoints. Concerns of algorithmic bias related to conservative and far-right viewpoints remain disputed. Elon Musk took on Twitter and promised to gut its trust and safety team and reform its terms and services. Musk argued at the time that this was done to "promote" free speech. One could argue that this was the case when Musk and X CEO Linda Yaccarino reinstated the previously banned accounts of former President Donald Trump, rabble-rouser Alex Jones, and others. However, the debate of whether a technology company is violating free speech rights by self-regulating runs up against more widely accepted theories that the First Amendment is a protection against government censorship. The vast majority of First Amendment litigators endorse this theory, given that case law surrounding Section 230 reaffirms this stance. The Houston Chronicle alludes to this in a piece by culture reporter Brittanie Shey that mentions Musk has bedfellows in Texas via Paxton and his office. But now that pornography is a formal category of content allowed on the platform, Shey rightfully points out that this new policy could run afoul of age verification laws enforced by Paxton and similar laws in other states. "It is difficult to evaluate the percentage of 'harmful' materials on any social media platform under the state age verification laws since most do not provide any method or formula for making the calculation," attorney Larry Walters told AVN.  Walters, of his namesake law firm Walters Law Group, based in Longwood, Fla., specializes in First Amendment cases, with a focus on the speech rights of adult entertainment industry professionals and sex workers on the internet. He explained that social media apps like X might not be subject to age verification laws in certain states. AVN reported that Tennessee Gov. Bill Lee adopted Senate Bill (SB) 1792, an age verification law with a felony charge attached that will enter force next year. The law requires a hosted content threshold of one-third or more to be regulated and required to verify users' ages, up from 10 percent. "As the [legal] threshold lowers ... there is more risk that a larger social media platform like X could be captured by the age verification obligations," Walters said. "We welcome X to join the legal challenges being pursued against these laws." At this juncture, it is extremely hard to identify the scale of how much of the content on X is considered adult content and what isn't. According to numbers published by X in March, the platform sees about 250 million daily active users and 550 million monthly active users. While X remains a popular marketing platform for adult content creators and brands, it is still a mainstream social media network featuring content that isn't pornographic—internet memes, news outlets, politicians, musicians, comedians, actors and, of course, far-right trolls. Now that the X policy requires adult content to be labeled NSFW, there will likely be a greater means of accounting for such material. As stated, though, that has yet to be seen.  "No one knows how much adult content is really available on X, nor do we know how most states are calculating the percentage standard," said Mike Stabile, director of public affairs for the Free Speech Coalition (FSC), in an email. "Could X be liable in Texas or other jurisdictions? Possibly, though nothing specifically changes from this latest announcement." Stabile added that app stores, such as the Apple App Store, might be a greater threat to X users than any state or federal government due to their terms of service.   "The fact that almost half of teens have seen adult content on platforms like X shows how dishonest the proponents of age verification legislation are," FSC executive director Alison Boden told AVN. "Rather than protect minors, these bills encourage the growth of these illegal sites and the distribution of adult content on non-adult platforms where minors are more likely to stumble upon it."   AVN also inquired with the Age Verification Providers Association (AVPA) about the new policy in a bid to balance the discussion. Iain Corby, the executive director of AVPA, told AVN, "Platforms with a mix of content have the added problem of distinguishing between NSFW material and less harmful or indeed harmless user-generated content.   "Asking users to label their posts accordingly is an obvious and welcome first step, as is a reporting process for untagged adult content," Corby added. "However, sites will likely need additional automated moderation tools to satisfy many regulators; they can’t rely solely on users to self-police. And, of course, having labeled it, effective privacy-preserving age assurance beyond easily circumvented self-declaration is essential."    Some concerns highlighted in research for this piece touched on two other areas: 2257 record-keeping for adult content creators on X and shadow-banning.   In our email discussion with Stabile, he referred to rulings in federal courts that portions of 2257 and 2257A are unconstitutional.   "As for X's requirement to keep 2257 records, that depends on their tolerance for risk," said Stabile. "In the victory in the Third Circuit secured by Free Speech Coalition, the court said it assumed that secondary producer requirements were unconstitutional, but as no one who was exclusively a secondary producer was party to the case, they did not rule definitively."   Stabile referred to an FSC legal victory in 2021 where a panel at the U.S. Third Circuit Court of Appeals found warrantless inspections and aspects of the law unconstitutional.    "Section 2257 contains an exemption that covers user submission of recorded content on a social media platform. Moreover, Section 2257 has been declared largely unconstitutional in litigation brought by the Free Speech Coalition," added Larry Walters. "Therefore, it is not likely of much concern to X."   The new X policy does not address shadow-banning—or restricting the visibility of certain accounts on the platform—but that isn't surprising, given that it has never outwardly acknowledged that it engages in the practice.