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TAMPA, Fla. (WFLA) — Utah Republican Senator Mike Lee has proposed legislation to officially define obscenity, as it relates to free speech, in a move that would essentially make internet pornography illegal in the United States.
For legal purposes, obscenity is one of few types of speech not protected by the First Amendment, and blocked from interstate or foreign transmission by current federal law.
According to a one-page explanation by the Utah senator, the new legislation would modify the Miller test, a U.S. Supreme Court precedent from 1973 which set a way of defining material as sexual or obscene content, affecting the “prurient interest” precedent by an earlier SCOTUS ruling.
Prurient means that something either has or encourages an excessive interest in sexual matters.
The Miller test used ruled that if the average American would find content that appeals to the prurient interest, it is considered obscene.
When announcing his proposed bill, Lee said SCOTUS has “struggled to define obscenity” as it relates to free speech, and that the internet presented “serious challenges” to the Miller test.
Lee’s proposed legislation, the Interstate Obscenity Definition Act, would use federal free speech guidelines to make content that “taken as a whole appeals to the prurient interest in nudity, sex, or excretion” or “depicts, describes, or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person,” or when “taken as a whole, lacks serious literary, artistic, political, or scientific value,” as obscene.
Those specific definitions were set by the Miller test’s definition of obscene speech.
While the Miller test included the legal guide of “sexual conduct specifically defined by the applicable state law,” Lee’s proposal would federally codify the Miller test as it relates to internet materials and content.
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According to his one-page explanation of the proposal, it would “strengthen the existing general prohibition on obscenity” found in the U.S. Communications Act of 1934, to take out the “intent” requirement of the ban on transmitting obscene materials for purposes of abuse, threats, or harassment.
Doing so would mean transmitting any of these types of materials online would qualify as obscene, since the specificity of purpose would be removed.
The full text of the bill, published by Lee, includes types of content that the new guidelines would apply to. Those types of content include:
- Pictures
- Images
- Graphic Image Files
- Film
- Videotapes
- Other visual depictions
In terms of what Lee would define as obscene, the bill lists the following actions, if intended to “arouse, titillate, or gratify the sexual desires of a person”:
- Actual or simulated sexual acts
- Actual or simulated sexual contact
- Actual or simulated normal or perverted sexual acts
- Lewd exhibition of genitals
- Lacks serious literary, artistic, political, or scientific value
Put simply, the bill would remove First Amendment protections from, and ban the distribution of, adult materials in the whole of the U.S. However, the new obscenity definition included in Lee’s proposal, that the material simply arouses, titillates, or gratifies someone’s sexual desires, is bluntly broad.
As written, the definition applies to any and all pornographic material, even if performed by and marketed to, and transmitted or distributed solely by adults to adults in the United States.
The Free Speech Coalition, an adult industry advocacy nonprofit, spoke with VICE News, criticized Lee’s legislation as “yet another attempt by conservatives to censor speech and expression about sex.”
FSC director of Public Affairs Mike Stabile told VICE that the bill was “a threat” to those working in the adult industry, particularly to “their business, to their livelihood,” and “to their community.” Stabile said the legislation was unlikely to pass in Congress but is a sign of “a very reactionary cultural moment.”
