Sen. Mike Lee Wants To Ban Porn by Redefining ‘Obscene’
Last week Sen. Mike Lee (R–Utah) introduced the Interstate Obscenity Definition Act (IODA), which seeks to amend the legal definition of “obscenity” to essentially allow for the regulation of pornography. The bill is another attempt by conservative lawmakers to regulate Internet pornography in recent years. While other efforts are aimed at less direct regulation, this bill goes straight to the source — trying to roll back the First Amendment protections that prevent state regulation of pornography in the first place.
Although obscenity is not afforded First Amendment protection, the bar for what actually constitutes obscenity is incredibly high — something Lee hopes to change.
The definition of obscenity is based on a strict, three-pronged test arising from the 1973 case. Miller v. California. According to the Miller test, a given image or video becomes obscene 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 sexual conduct specifically defined by applicable state law, in a clearly offensive manner; and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”
Obscenity is one of the more difficult elements of First Amendment law, and it is still somewhat unclear how much contemporary pornography is protected by the First Amendment. Over the years it has been determined that a wide range of pornographic material is not obscene. at the same time, Miller v. California without depictions of “publicly offensive ‘hardcore’ sexual behavior” as obscenity. With the vast variety of pornography available online, it should be obvious that at least some—though perhaps only a small range—of the currently distributed Internet pornography would meet the strict qualifications for legal obscenity.
The IODA is an attempt to challenge the Miller test’s prominence, creating an alternative definition of obscenity. According to IODA, content will be considered obscene if: “(i) taken as a whole, appeals to the prurient interest in nudity, sex or excretion, (ii) depicts real or simulated sexual acts with the objective intent to depict, describe or represented to arouse, excite or satisfy the sexual desires of a person, and (iii) taken as a whole, it lacks serious literary, artistic, political or scientific value.”
This includes more than just the most difficult core forms of pornography. This new definition would basically make the majority of pornography legally obscene. The change would therefore allow for the criminalization of most Internet pornography by removing the requirement that sexual depictions be “publicly offensive” as well as the requirement that “contemporary community standards” be used to judge material.
As the IODA runs afoul of a Supreme Court ruling, it is likely to face legal challenges before it can be enforced. Granted, it is unclear whether such challenges will be successful. “It’s possible that the court could eventually amend Miller in a way that would lead to upholding the law; hard to know for sure,” said UCLA law professor Eugene Volokh. Reason. “If the law is passed, I don’t think it can be enforced by lower courts because it is inconsistent with the Miller v. California precedent. But could the Supreme Court agree to hear a challenge to the law and use it as an opportunity to review precedent? Hard to know for sure.”
Not surprisingly, Lee’s attempt to redefine obscenity has drawn criticism from free speech advocates, who cite the bill’s attempt to stifle 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,” said Adam Schwartz, senior staff attorney at the Electronic Frontier Foundation. Reason. “This bill would endanger this freedom by empowering prosecutors across the country to punish people who share such information by creating a vague and untested new definition of criminal ‘obscenity.'”
While the IODA appears intent on restricting speech rights, it is highly unlikely that the bill’s ultimate goal—a reduction in Americans’ pornography viewing habits—could ever be successful. For example, in Turkey, where pornography is generally illegal, one 2012 study estimated that despite the ban, nearly 2 million Turkish users watched pornographic videos online every minute. It is hard to imagine how a US porn ban would be more effective.
Despite Lee’s intentions, if the IODA succeeds in passing the collection, its primary effect is likely to be a chilling of First Amendment rights rather than a reduction in American pornography.
