WASHINGTON, D.C. – In a move that has already infuriated free speech advocates, U.S. Sen. Mike Lee (R-UT) has proposed legislation that would legally define the term “obscenity” for all 50 states.
“Obscenity isn’t protected by the 1st Amendment,” Lee said, after introducing his Interstate Obscenity Definition Act (IODA) into the 119th Congress on May 8.
“But hazy and unenforceable legal definitions of that term have allowed extreme pornography to saturate American society and reach countless children.”
Lee’s proposed legislation would clarify the definition of obscenity across all states and provide updated descriptions suited to modern content.
Lee’s staff here in Washington say his new definition would remove dependence on ever-changing and elusive public opinion, replacing ambiguity with practical standards to make obscenity identifiable.
U.S. courts have struggled with the problem of defining obscenity for decades.
The phrase “I know it when I see it” was famously used by Supreme Court Justice Potter Stewart in 1964, in his opinion in the case of Jacobellis v. Ohio. While admitting his inability to define what constitutes hard-core pornography, Stewart nonetheless asserted his subjective ability to recognize it when it appeared.
In 1973, the Supreme Court ruling in Miller v. California established a three-part test for determining obscenity. That test replaced the previous, less specific standards and remains the legal standard for obscenity.
Specifically, the so-called “Miller test” defined obscenity as depicting or describing, in a patently offensive way, sexual conduct specifically defined by applicable state law; the work, taken as a whole, must lack any serious literary, artistic, political or scientific value; and the material must appeal to the prurient interest of an average person using contemporary community standards.
Lee considers that definition subjective and vague, making it difficult to apply with certainty to any given material.
Using a pre-internet standard for modern times presents serious challenges, the senator’s staff insists, particularly when states use differing definitions for obscenity which allow criminals to evade prosecution.
The issue, of course, is that obscenity could mean different things in different states under the more than 50-year-old Miller Test.
For example, obscenity could mean one thing in mostly conservative western states – like Utah – and something else entirely in more liberal West Coast states.
Under Lee’s proposed legislation, law enforcement agencies nationwide will have a single definition by which to judge obscenity, empowering them to identify and prevent obscene pornography from being transmitted across state lines.
That definition would be based on standards established by the Communications Act of 1934. It would define obscenity as any material which, taken as a whole, appeals to a prurient interest in nudity, sex or excretion; depicts, decribes or represents actual or simulated sexual acts with the objective intent to arouse, titillate or gratify sexual desires; and lacks serious literary, artistic, political or scientific value.
The Interstate Obscenity Definition Act would also strengthen the existing general prohibition on the transmission of obscenity for the purpose of abusing, threatening or harassing a person.
Similar legislation is being introduced into the U.S. House of Representatives by Rep. Mary Miller (R-IL).
“Our bill updates the legal definition of obscenity for the internet age,” Lee said. “It will allow this content to be taken down and its peddlers prosecuted.”