Republican lawmakers have introduced legislation that seeks to redefine obscenity to make it illegal to distribute or consume pornography, regardless of the material's intent.
The Interstate Obscenity Definition Act, introduced May 8 by Sen. Mike Lee, R-Utah, would redefine "obscenity" within the Communications Act of 1934 as content that taken as a whole, appeals to the prurient interest in nudity, sex, or excretion; depicts, describes or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person; and taken as a whole, lacks serious literary, artistic, political, or scientific value.
It also would remove the "intent" requirement that only outlaws the transmission of obscenity for the purpose of abusing, threatening, or harassing a person.
The bill seeks to amend the legal definition of obscenity derived by the 1973 Supreme Court ruling in Miller v. California, in which obscene material not protected by the First Amendment must pass a three-prong test: that it lacks serious value, depicts explicit sex, and offends community standards.
Obscenity is not protected speech under the First Amendment, according to the Department of Justice, and federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to distribute or sell, or engage in a business of selling or transferring obscene materials. Although the law generally does not criminalize the private possession of obscene materials, the act of receiving such material could violate federal laws, the DOJ said.
"Hazy and unenforceable legal definitions have allowed extreme pornography to saturate American society and reach countless children," Lee said in a news release. "Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted."
Rep. Mary Miller, R-Ill., has introduced companion legislation in the House.
"The Interstate Obscenity Definition Act equips law enforcement with the tools they need to target and remove obscene material from the internet, which is alarmingly destructive and far outside the bounds of protected free speech under the Constitution," Miller said in the news release. "I'm proud to lead this effort in the House with Sen. Lee to safeguard American families and ensure this dangerous material is kept out of our homes and off our screens."
Lee attempted to introduce the legislation in 2022 and 2024, but it was stalled in the Democrat-controlled Senate.
Adult industry lawyer Corey D. Silverstein told XBIZ, an adult industry news outlet, that he doesn't believe the legislation will pass constitutional muster.
"I can't believe that Sen. Lee is naive enough to think that this bill will become law or survive a constitutional challenge," Silverstein said. "Further, he seems to be envisioning a national community standard instead of the 'local community standards' articulated in Miller. So, while Sen. Lee continues his fantasies about eliminating sexual content, I expect this bill to fail just as it did in 2022 and 2024."
Lee and Miller introduced the SCREEN Act in February that would require pornographic websites to use age verification technologies to prevent children from being exposed to online pornography. Lee also unveiled online safety legislation on May 1 to require app stores and developers to verify users' ages when registering for an account and mandate parental approval for app downloads by minors.