A new legislative proposal has been introduced by two Republican legislators aiming to revise the legal definition of “obscenity.” This could potentially lead to a prohibition on pornography and the prosecution of individuals for distributing it.
The bill, named the Interstate Obscenity Definition Act, has been proposed by Mike Lee, a Republican senator from Utah, and Mary Miller, a Republican representative from Illinois.
This bill aims to intensify efforts against the consumption of “obscene content” by proposing a change to the Supreme Court’s 1973 “Miller test” and establishing a unified national definition of what qualifies as obscenity.
The primary objective of the bill is to address “obscene” content at a federal level, making it easier to pursue prosecutions, which could potentially result in the banning of pornographic material.
Currently, what is the stance of the United States on obscenity and pornography?
In the United States, pornography can be legally purchased and accessed online.
However, according to Cornell Law School, it becomes illegal to distribute pornography when it is “knowingly distributed to minors under 18.” It is also prohibited if an individual’s consent is not obtained for sharing media or if it features a minor under 18 in a sexual act.
The Miller Test, originating from the 1973 Supreme Court case Miller v. California, provides a “three-pronged approach” to determine if any written material, art, or film is considered obscene and thus not protected by the First Amendment. Such material can be banned if the average person determines that it:
Lee and Miller are primarily focused on revising the second prong.
The Interstate Obscenity Definition Act (IODA) “clarifies the definition of obscenity across all states and provides updated descriptions suited to modern content,” according to a press release on Lee’s website.
The bill contends that the current definition of obscenity is “difficult to assess and prosecute,” noting that it stems from a 1973 Supreme Court case, and labeling its “standards” as “subjective and vague,” making them “difficult to apply with certainty to any given material.”
“Using a pre-internet standard for modern times presents serious challenges – particularly when states use differing definitions for ‘obscenity’ – and allows criminals to evade prosecution,” the bill asserts.
Lee’s website details that the “new definition” for obscenity would “remove dependence on ever-changing and elusive public opinion, replacing ambiguity with practical standards to make obscenity identifiable.”
This initiative could mark the beginning of a federal prohibition on pornography.
So, what exactly does the act propose as the definition of obscenity?
The act proposes defining obscenity within the Communications Act of 1934 as content that “taken as a whole, appeals to the prurient interest in nudity, sex, or excretion.”
Additionally, it includes anything that “depicts, describes or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person” and finally, “taken as a whole, lacks serious literary, artistic, political, or scientific value.”
The act would also “strengthen the existing general prohibition on obscenity in the Communications Act (47 U.S.C 223(a)) by removing the ‘intent’ requirement, which currently only prohibits the transmission of obscenity for the purposes of abusing, threatening, or harassing a person.”
What potential effects could this bill have if enacted?
If passed, the bill could result in the prosecution of individuals sharing obscene or pornographic content.
The aspect of the bill concerning the “transmission of obscenity” has also sparked debate, as it might affect the work of phone sex operators or cam performers, for example.
Moreover, this could impact not just phone sex operators or cam performers but could also affect members of the public who send provocative messages.
“Under IODA, law enforcement will be empowered to identify and prevent obscenity from being transmitted across state lines,” the proposal states.
Miller emphasizes that the act aims to “equip law enforcement” with improved “tools” to “target and remove obscene material from the internet.”
He argues that current obscene material is “alarmingly destructive and far outside the bounds of protected free speech under the Constitution.”
Lee remarked, “Obscenity isn’t protected by the First Amendment, but hazy and unenforceable legal definitions have allowed extreme pornography to saturate American society and reach countless children.”
“Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”