A GOP Congressman’s New Bill is Trying to Get Porn Pulled From the Internet
Nearly five years after the US law SESTA-FOSTA led to the destruction of several online safe havens and vetting services for sex workers, another piece of federal legislation threatens to improve sex workers’ livelihoods. And if this one passes Congress, it could completely change the way pornography exists on the Internet.
Republican Senator Mike Lee (UT) introduced the Interstate Obscenity Definition Act in the Senate on Wednesday. According to an explainer published by Lee’s office, the bill would “establish a national definition of obscenity that would apply to obscene content transmitted via interstate or foreign communications.” It would effectively strengthen federal laws targeting obscene material — and significantly harm sex workers and NSFW artists in the process.
How would IODA ban pornography?
If approved in its current state, IODA would amend the Communications Act of 1934 to federally codify the terms “obscene” and “obscenity” under a modified version of the contemporary American judicial standard, the Miller test. According to the Department of Justice, the current Miller test defines obscene material based on:
- Whether the average person, applying today’s adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (iean erotic, lascivious, abnormal, unhealthy, degrading, shameful or morbid interest in nudity, sex or excretion);
- Whether the average person, applying today’s adult community standards, finds that the matter depicts or describes sexual behavior in a clearly offensive manner (ie, ultimate sexual acts, normal or perverted, real or simulated, masturbation, excretory functions, indecent exposure of the genitals, or sado-masochistic sexual abuse); and
- Or a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political or scientific value.
Under the new definition provided in IODA’s current text, obscenity and obscene material will apply to various forms of multimedia that:
- taken as a whole, appeals to the close interest in nudity, sex or excretion
- depicts a real or simulated sexual act or sexual contact, real or simulated normal or perverted sexual acts, or lewd display of the genitals, with the objective intention of arousing, stimulating or satisfying the sexual desires of a person. ; and
- considered as a whole, lacks serious literary, artistic, political or scientific value
The bill removes the Miller test’s guidelines on “contemporary adult community standards,” a contentious point in obscenity cases, as legal experts have argued whether community standards should be treated as highly diverse and local phenomena according to The First Amendment Encyclopedia.
IODA completely bypasses this legal discourse. If passed, any American who knowingly “makes, creates, or requests, and initiates the transmission of, any comment, request, proposal, suggestion, image, or other communication that is obscene, indecent, lascivious, filthy, or obscene” via the internet would be fined or imprisoned under federal law as a “conduit or instrumentality” of interstate commerce.
Originally, the Communications Act simply prohibited the creation and transmission of obscene material “with the intent to annoy, abuse, threaten or harass another person”. Lee’s office claims the omission of this phrase “reinforces the existing general ban on obscenity.” It would also theoretically prohibit the distribution of adult content through other channels and instruments, such as highways and automobiles, respectively.
What would IODA’s enforcement theoretically look like?
If IODA passes, adult industry news outlet XBIZ warns that the bill would “effectively ban all online sexual content nationwide.” Sex worker and adult industry advocacy group Free Speech Coalition tweeted the bill “would remove pornographic First Amendment protections and effectively ban distribution of adult material in the US.”
IODA, in other words, would serve as a massive blow to sex workers who create sexually explicit material, such as photos, videos and even sexts. It will also harm adult artists trying to make ends meet by sharing, distributing and selling illustrated sexual content. The vague and uncertain nature of the bill’s wording opens up potential legal risks for the advertising of sexual services, and even the discussion of sexual material over the Internet.
IODA will also target the creation and distribution of adult content shared privately over the internet, such as explicit images shared in IMs between loved ones, watchdogs warn.
“IODA will immediately criminalize almost all sex workers who share or sell content online. The definition for obscenity is so broad that it would include almost all sexual speech that is now legal. But it will also criminalize fans who share content, or couples who share sext or intimate images on dating apps,” FSC’s Director of Public Affairs Mike Stabile told The Mary Sue. “People don’t think of themselves as ‘pornography distributors’ but under this bill even retweeting adult content or DMing a dick picture is a criminal act. The headlines are about pornography, but this bill criminalizes sex.”
There is a long history of obscenity claims targeting marginalized Americans. Previously, a Virginia judge ordered local bookstores to pull two works from local store shelves under an obscenity lawsuit. One of the books had an impact, non-binary illustrator Maia Kobabe’s Gender Queeris a popular target by the far right.
Stabile also notices a pattern. “The attack on pornography and sex workers is intimately connected to the attacks on dress, trans healthcare, reproductive rights, book bans and digital privacy. IODA is one part of a larger movement to push sex and gender back into the closet,” he said. “They come after pornography because they think people will be too afraid to defend it.”
IODA “has virtually no chance of passing in this Congress,” Stabile told The Mary Sue. But this isn’t the first time we’ve seen congressional efforts to marginalize sex workers and shut down online pornography. In late 2020, the bipartisan Stop Internet Sexual Exploitation Act promised to create a series of complicated, ill-defined and extremely expensive anti-sexual exploitation initiatives that would be virtually impossible to operate across platforms that offer online sexual content. That same year, the EARN IT Act was introduced, which threatened to create a series of online best practices that would eventually erode Section 230 protections for adult content and online sex work. The law was reintroduced this year. Stabile also expects Lee to reinstate IODA next year.
IODA may not win a major victory for censorship of pornography from the Internet. But pay close attention to this bill, and others like them. Steps are being taken to strip adult content from the internet. And if even one of these bills passes, it could seriously hurt some of the most vulnerable among us: sex workers, queer creators, and anyone who uses sex for a living.
“We cannot afford to be dismissive of bills like this. As we saw with Dobbs, precedent means very little these days,” Stabile told The Mary Sue. “This is the time when sex workers and groups like FSC need those who consume adult content to stand up and join the fight.”
The Mary Sue reached out to Lee for comment.
(Featured Image: Gage Skidmore/Flickr (CC BY-SA 2.0))
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