Sen. Mike Lee Wants To Ban Porn by Redefining 'Obscene'

The IODA aims to edit the legal defintion of "obscenity" to allow for the regulation of most pornography. But even if it passes, a nationwide porn ban is unlikely to succeed.

Last week, Sen. Mike Lee (R–Utah) introduced the Interstate Obscenity Definition Act (IODA), which attempts to edit the legal definition of "obscenity" to allow essentially for the regulation of pornography. The bill is yet another attempt by conservative lawmakers to regulate internet pornography in recent years. While other attempts have aimed for less direct regulation, this bill goes right to the source—attempting to roll back the First Amendment protections that prevent state regulation of porn in the first place.

While obscenity is not afforded First Amendment protection, the bar for what actually amounts to obscenity is incredibly high—something Lee hopes to change.

The definition of obscenity is based on a stringent, three-part test originating from the 1973 case Miller v. California. According to the Miller test, a given image or video rises to obscenity if "(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Obscenity is one of the trickier elements of First Amendment law, and it is still somewhat unclear just how much contemporary pornography is protected by the First Amendment. Over the years, a wide range of pornographic material has been determined to not be obscene. At the same time, Miller v. California singles out depictions of "patently offensive 'hard core' sexual conduct" as obscenity. With the extensive variety of pornography available online, it should be obvious that at least some—though perhaps only a small range—of the currently distributed internet porn would meet the strict qualifications for legal obscenity.

The IODA is an attempt to challenge the Miller test's prominence, creating an alternate definition of obscenity. According to IODA, content would be deemed obscene if: "(i) taken as a whole, appeals to the prurient interest in nudity, sex, or excretion, (ii) 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, (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value."

That encompasses more than just the hardest core forms of pornography. This new definition would basically render the majority of pornography legally obscene. The change would thus allow for the criminalization of most internet pornography, by removing the requirement that sexual depictions be "patently offensive," as well as the requirement that "contemporary community standards" be used to judge material.

As the IODA conflicts with a Supreme Court ruling, it would likely face legal challenges before it could be enforced. Granted, it's unclear whether such challenges would be successful. "It's possible that the Court may ultimately modify Miller in a way that would lead to upholding the law; hard to know for sure," UCLA law professor Eugene Volokh tells Reason. "If the law is passed, I don't think it could be enforced by lower courts, because it's inconsistent with the Miller v. California precedent. But might the Supreme Court agree to hear a challenge to the law, and use it as an occasion to revisit the precedent? Hard to know for sure."

Unsurprisingly, Lee's attempt to redefine obscenity has led to criticism from free speech advocates, who cite the bill's attempt to smother First Amendment rights. "For decades, Americans have enjoyed the freedom to access and share information on the internet about human sexuality, including the politics of rape, and how to practice safe sex," Electronic Frontier Foundation Senior Staff Attorney Adam Schwartz tells Reason. "This bill would endanger this freedom, by empowering prosecutors throughout the country to punish people who share such information, by creating a vague and untested new definition of criminal 'obscenity.'"

While the IODA seems intent on restricting speech rights, it's highly unlikely that the bill's ultimate goal—a reduction in Americans' porn-watching habits—could ever be successful. For example, in Turkey, where pornography is broadly illegal, one 2012 study estimated that despite the ban, nearly 2 million Turkish users watched online porn videos each minute. It's hard to imagine how a U.S. porn ban would be any more effective.

Despite Lee's intentions, if the IODA manages to pass muster, its primary effect would likely be a chilling of First Amendment rights rather than a reduction in American porn consumption.