Republican Lawmakers Want To Replace The Community Standard For Obscenity With *Their* Own Standard

Free Speech

from the we'll-decide-what-adults-can-access dept

They may claim they care about the children, but the Republican push for age verification laws, book bans, and the general censorship of anything not specifically straight and (preferably) white is all about preventing adults from accessing content these lawmakers don’t personally care for. The kids are merely useful leverage for legislators pushing for the codification of their particular moral standards.

For no real reason at all other than their desire to control what content others can access, two Republican Congress members have decided it’s time to enact a federal obscenity standard, as Elizabeth Nolan Brown reports for Reason:

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.

Senator Lee gives away part of the game in his statement. This isn’t about prosecuting actual obscenity cases. It’s all about whipping up a chilling effect that’s frigid enough to encourage plenty of self-censorship. It’s all stick and no carrot, crafted as broadly as possible in hopes of encouraging prosecutors to crack down on people engaged in protected speech to prevent their expression from reaching their intended audiences.

What the law would do is erase Supreme Court precedent. Since there’s no federal law defining obscenity, the Supreme Court has created what’s known as the Miller test — something that requires judges to consider not just the content, but the context and its possible value as protected expression. This law would eliminate the test and replace the community standard (what the “reasonable person” might think of the contested content) with whatever Mike Lee and the bill’s supporters think should be considered protected speech.

The Supreme Court’s obscenity test has three prongs the government must satisfy to pursue obscenity charges. This bill still keeps the prongs, but renders them mostly useless by declaring pretty much anything sexual to be criminally obscene.

[R]ather than requiring that something depict or describe sexual conduct in a “patently offensive” way in order to be considered obscene, Lee thinks basically all depictions of sexual conduct or erotic nudity could count as obscenity. 

The other worrying aspect of Lee’s bill [PDF] is a paragraph that, at first, seems to have no bearing on the rest of the proposed law.

(b) OBSCENE OR HARASSING TELEPHONE CALLS IN THE DISTRICT OF COLUMBIA OR IN INTERSTATE OR FOREIGN COMMUNICATIONS.—Section 223(a)(1)(A) of the Communications Act of 1934 (47 U.S.C. 223(a)(1)(A)) is amended, in the undesignated matter following clause (ii), 19 by striking ‘‘, with intent to abuse, threaten, or harass 20 another person’’.

Why is this tacked on to the end of an anti-porn bill? And why is it there solely to sever intent from a criminal act, which is the sort of thing that leads directly to abuse of these laws? Obviously, there’s a reason Mike Lee has added this clause to his bill, but it’s not exactly clear why he’s so interested in stripping criminal intent from a clause about “obscene or harassing telephone calls.”

But there’s a good chance it has something to do with preventing anyone — including adults — from accessing content Mike Lee would clearly like to ban. Here’s Nolan Brown, suggesting one possible reason for this addition to the bill:

All sorts of sex work that relies on video calls—whether via a dedicated web-camming platform or some other service—could potentially be banned by removing the requirement that “obscene” calls be harassing or abusive in order to be criminal.

The proposed change would possibly allow for targeting phone sex operators and dirty phone calls, too. While Lee’s revised definition of obscenity concerns visual depictions, not words, it still seems to allow for obscenity to exist in other contexts. In short, it defines all pornographic images as illegal obscenity, but it does not limit illegal obscenity to pornographic images.

That leaves room for phone calls that include sex talk to be labeled obscene even when everyone involved is a consenting adult.

That’s what happens when you strip intent from criminal laws. It means you can turn victimless, voluntary interactions into criminal acts. Harassment cases generally need a victim to instigate criminal proceedings. With this clause being rewritten, all the government needs to demonstrate is that an “obscene” communication took place, even if there was no victim and no one acting with criminal intent.

This isn’t Mike Lee’s first attempt to rewrite the obscenity standard in his own image. Lee tried this in 2022 and it went nowhere. But maybe he feels there’s a better chance of survival with Trump back in the White House and state legislatures all over the nation jumping on the censorship bandwagon, equally willing to ignore the Constitution and decades of Supreme Court precedent. Hopefully, this one will soon join his previous attempt in the dustbin of bad ideas. But even if it does, something equally stupid, pushed by someone equally stupid, will be ushered into existence to take its place.

Filed Under: 1st amendment, censorship, free speech, mary miller, mike lee, obscenity laws