Republicans Want To Redefine Obscenity

A new bill would ban sharing visual content that might "arouse" or "titillate."

Sen. Mike Lee (R–Utah) wants to redefine obscenity in a way that could render all sorts of legal sexual content illegal. His proposal would make the definition of obscenity so broad that it could ban even the most mild pornography, and possibly even more.

Lee and Rep. Mary Miller (R–Ill.), who introduced a companion bill in the House, have made no secret of the fact that the Interstate Obscenity Definition Act (IODA) is intended to get porn off the internet. "Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted," Lee said as he introduced the legislation.

But his proposed definition of obscenity is "so broad" that the TV show Game of Thrones could fall under its purview, suggests Ricci Joy Levy, president and CEO of the Woodhull Freedom Foundation.

The bill makes a mockery of the First Amendment.

"It really struck me that there's nothing about that definition that I think would survive constitutional review," says Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.

Contemporary Community Standards

Obscenity is one of a few categories of exceptions to First Amendment–protected speech. While federal law doesn't ban the mere possession of obscene materials, unless they involve minors, it does ban possessing or producing obscene material with the intent to sell or distribute it, along with selling, sending, shipping, receiving, importing, or transporting obscene material, or engaging in a business that does.

There is no federal law that strictly defines what is considered obscenity. To make a judgement, courts rely on what's become known as the Miller test. Its three prongs were established by the U.S. Supreme Court in the 1973 case Miller v. California (and clarified further in 1987's Pope v. Illinois).

Under the Miller test, something obscene must appeal to "prurient interests," depict or describe sexual acts in a "patently offensive" way, and, when taken as a whole, lack "serious literary, artistic, political, or scientific value." If it fails to meet any of these prongs, it's not obscene.

Moreover, determining whether something lacks value requires applying a "reasonable person" standard, and determining if something appeals to prurient interests and is offensive requires asking "whether the average person, applying contemporary adult community standards," would think so. This is supposed to ensure that we're not declaring things criminally obscene just because some vocal minority of people might think they are, or because of standards that are no longer in touch with the times.

"It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City," wrote Chief Justice Warren E. Burger for the majority in Miller, explicitly rejecting the idea that there should be one national standard for obscenity law.

Lee wants to change this.

Redefining Obscenity

Lee's Interstate Obscenity Definition Act would "clarify the legal definition of 'obscenity' for all states," a press release from Lee's office states. It would also do away with a definition of obscenity that relies on what Lee's office's calls "ever-changing and elusive public opinion."

Basically, Lee wants to replace the average person's opinion with his own.

And his own opinion seems to be that virtually any depiction of human sexuality is obscene.

Under Lee's proposal, obscenity would include any picture, graphic image file, film, videotape, or other visual depiction that satisfies three conditions. Two of these are similar to the prongs of the Miller test, albeit without including a community standards or average person caveats: Obscenity would have to appeal "to the prurient interest" in nudity, sex, or excretion, and it would have to lack literary, artistic, political, or scientific value.

But rather than requiring that something depict or describe sexual conduct in a "patently offensive" way in order to be considered obscene, Lee thinks basically all depictions of sexual conduct or erotic nudity could count as obscenity. The other prong of his definition of "obscenity" ropes in anything that "depicts, describes, or represents an actual or simulated sexual act or sexual contact" or "lewd exhibition of the genitals" in a way meant to "arouse, titillate, or gratify the sexual desire of a person."

"The point is to loosen the definition of obscenity so it's more broad and the government is removed of the obligation to prove patent offensiveness," says Levy. In that way, it would give the government more leeway to target porn producers and distributors with criminal sanctions.

This is, indeed, what Lee and Miller are saying. When they unveiled IODA, Miller declared that the law would give law enforcement "the tools they need to target and remove obscene material from the internet" and to "ensure this dangerous material is kept out of our homes and off our screens."

This isn't about age-gating online porn or otherwise ensuring that it's not easily accessible to minors. It's about ensuring that no one can to see content that that might "arouse" or "titillate."

Coming for Your Text Messages? 

Aside from defining obscenity, Lee's bill has one other component—and it's a bit of a head-scratcher. It concerns the federal crime of "obscene or harassing" telecommunications.

Currently, "obscene" communications transmitted "by means of a telephonic device" must be done with an "intent to abuse, threaten, or harass" in order for them to be considered a crime. Lee's bill would remove the "intent to abuse, threaten, or harass" bit, so any telecommunications considered "obscene" would be criminalized even when no ill intent was present.

It's unclear why. Levy thinks the target is probably webcam videos, which are a very popular medium for personalized erotic shows and chat.

All sorts of sex work that relies on video calls—whether via a dedicated webcamming platform or some other service—could potentially be banned by removing the requirement that "obscene" calls be harassing or abusive in order to be criminal.

The proposed change would possibly allow for targeting phone sex operators and dirty phone calls, too. While Lee's revised definition of obscenity concerns visual depictions, not words, it still seems to allow for obscenity to exist in other contexts. In short, it defines all pornographic images as illegal obscenity, but it does not limit illegal obscenity to pornographic images.

That leaves room for phone calls that include sex talk to be labeled obscene even when everyone involved is a consenting adult.

It's even possible that this change could be used to go after porn and nude images sent from one telephone to another in various capacities. The Federal Communications Commission has held that text messages are "information services," not telecommunications, but the commission could change that in the future.

Bringing Back Movie and Magazine Busts

"There aren't a great number of pure obscenity prosecutions these days," notes Corn-Revere. Prosecutors may still bring obscenity charges in conjunction with charges for things like child abuse or child porn, "but a pure bust for dirty magazines or dirty books or dirty movies is very rare."

If IODA passes, that could change. And even if its new definition of obscenity eventually failed constitutional muster in court, it could cause a lot of damage as the cases played out.

"So, we take it to court, we go through six years of challenges, and in the mean time, information vanishes," says Levy, who thinks the bill would be used to target speech by and about LGBTQ activity and, especially, about transgender people.

While Lee has tried to impose a national definition of obscenity before and failed, Levy thinks that "in this climate, he might have a chance." Since the 2018 passage of FOSTA, a bill that criminalized hosting online content that could facilitate prostitution, we've seen increasing attempts to try and censor online content, she notes. "This is just another attempt to throw the spaghetti at the wall and see what sticks."

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AVN Awards, Las Vegas | 2016 (ENB/Reason)