Republican legislators have presented a bill aimed at redefining the legal understanding of obscenity to outlaw the distribution and consumption of pornography, irrespective of the intent behind the material.
The Interstate Obscenity Definition Act, proposed on May 8 by Sen. Mike Lee, R-Utah, intends to revise the definition of “obscenity” within the Communications Act of 1934. The new definition would consider as obscene any content that, in its entirety, evokes a prurient interest in nudity, sex, or excretion, or portrays sexual acts, real or simulated, with the explicit aim of sexually arousing or gratifying an individual. Further, such content, when viewed as a whole, must lack serious literary, artistic, political, or scientific merit.
The legislation also seeks to nullify the “intent” requirement, which currently only criminalizes the transmission of obscene material intended for abuse, threats, or harassment. This move by Sen. Lee and his associates proposes a change in the legal understanding of obscenity, established by the Supreme Court’s 1973 ruling in Miller v. California. At present, material deemed obscene and not protected by the First Amendment must satisfy a three-pronged test: it must lack serious value, explicitly depict sex, and violate community standards.
According to reliable sources from the Department of Justice, obscenity is not protected speech under the First Amendment. Federal law already prohibits the distribution, transportation, sale, and production of obscene materials with the intent to distribute or sell. While private possession of obscene materials is not generally criminalized, federal laws could be violated by receiving such materials, the DOJ has said.
Turning now to the broader implications, Sen. Lee argues that the existing “hazy and unenforceable legal definitions” have allowed extreme pornography to permeate American society and reach a significant number of children. The proposed legislation seeks to modernize the legal definition of obscenity for the digital age, facilitating the removal of such content and the prosecution of those disseminating it. Rep. Mary Miller, R-Ill., has introduced a companion bill in the House.
However, this development follows earlier reports that Sen. Lee’s previous attempts in 2022 and 2024 to introduce the legislation were stymied in a Democrat-controlled Senate. Corey D. Silverstein, a legal practitioner specializing in the adult industry, expressed doubts to XBIZ, an adult industry news outlet, about the legislation passing a constitutional test.
A renewed effort to redefine obscenity in the United States is underway. Whether this will result in a substantive shift in the legal landscape remains to be seen. It is essential for the public to stay informed about such legislative developments, given their potential impact on First Amendment rights and democratic processes.
