Republicans Want To Redefine Obscenity
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
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