Mike Lee Wants to Exempt Porn From First Amendment Protection
Lee's proposed bill would redefine and broaden obscene speech. It would also remove intent from the Communications Act.
A recent bill proposal from Sen. Mike Lee (R-Utah) would create a national definition of obscenity and prohibit obscene material from interstate or foreign communications.
The Interstate Obscenity Definition Act (IODA), introduced on December 14, would insert a definition of obscenity in Communications Act of 1934 .
The Communications Act of 1934 introduced a regulatory framework for interstate communication and established the Federal Communications Commission (FCC) to oversee regulation of the communications industry.
The law, as currently written, prohibits the transmission of “any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to abuse, threaten or harass another person.” The prohibition applies both to interstate and foreign communications.
Lee’s bill would strike the current statute’s language about “intent to abuse, threaten, or harass another person.” As a result, transmission of “obscene” interstate or foreign communications would simply be banned.
Given the definition of obscenity Lee’s bill would create, this prohibition would likely include pornographic content. The IODA defines obscenity as content that, when taken as a whole “appeals to the prurient interest in nudity, sex, or excretion.” Further, communication that “depicts, describes or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person” would be considered obscene, as would any communication that “taken as a whole, lacks serious literary, artistic, political, or scientific value.”
Lee notes that obscenity is not protected First Amendment speech but that the Supreme Court’s definition of obscenity makes obscene content difficult to define.
In 1957, the Supreme Court’s ruling in Roth v. United States created the “prurient interest” test, which defined obscenity according to whether the average person, using contemporary community standards, would find the communication in question appealed to prurient sexual interests.
In 1973, the court updated its metric for obscenity in Miller v. California, creating a three-part test. The Roth test remained, but the court also added “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law” and “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” to the definition of obscenity.
Lee’s definition of obscenity in IODA would codify the Miller test in the 1934 Communications act, with his stated intent of applying it to the internet.
“Because the internet is a “channel or instrumentality” of interstate commerce, Congress’s current obscenity prohibitions are severely diminshed. In response, Sen. Lee is proposing [IODA], which would establish a national definition of obscenity that would apply to obscene content that it transmitted via interstate or foreign communications.” a summary of the bill released by Lee’s office reads.
In directly adopting the court’s language from Miller, Lee is arguably attempting to insulate the bill from any First Amendment challenges it might draw. While its true obscenity is not protected First Amendment speech, pornography is protected speech. It only loses its protection when it becomes obscenity—something the law has struggled to define.
Is the Supreme Court—which famously doesn’t like to overturn past rulings—going to resist any challenge to Lee’s bill because it uses the Court’s own language? Possibly.
However, there are also several factors that might weigh against Lee should the bill become law and the Court agree to hear a First Amendment challenge to it.
One of the reasons the Supreme Court updated the Roth test is because “community standards” and “patently offensive” are subjective terms, as Lee’s office points out in its one-pager on the bill. However, deeming whether something lacks artistic value is also a matter of subjectivity.
Plus the definition of obscenity in Lee’s bill is incredibly broad—encompassing any depiction of a real or simulated sexual act with the objective of arousing sexual desire. That certainly covers pornography which has hitherto been generally protected, and goes well beyond the limits of obscenity in the Miller test. The Supreme Court may not be willing to go so far in suppressing speech. Lee’s bill also would apply to digital communications, a regulatory area Congress has yet to really venture into. That may also be a step to far for the Court, especially given Lee would strip from the 1934 Communications Act. The intent behind sending obscene communications is very much a part of the Miller test.
The same day Lee introduced IODA, he also introduced another bill, which would direct the FCC to create new rules requiring commercial porn sites to adopt age verification technology in an effort to stop children from accessing porn.
Lee is billing the Shielding Children’s Retinas from Egregious Exposure on the Net Act (SCREEN) as a response to the “public health crisis” resulting from pornography.
Lee would require the FCC’s adopted rules to “set a “more likely than not” verification standard for pornographic websites for the purpose of determining whether the use user of a pornographic website is a child or not.” It would allow porn websites to use their verification method, provided it met FCC verification standars.
Websites would be able to contract with third-party veririfcation websites and would have to establish an audit process to “ensure complaicne with the rul as well as ensure no identifiable user data is shared with the federal government.”
The bill would also grant the FCC new enforcement powers for civil penalties and injuncitve relief, to ensure websites are complying with the rule. If an online platform has not provided evidence of compliance or corrected a violations within 72 hours of being notified, they are subject to a civil penalty of up to $25,000. Each day a platform is found not in compliance constitutes a separate violation.
After 30 days of noncompliance, the FCC can seek an order prohibiting a platform from engaging in any online economic transaction. Such an injunction would last until the platform demonstrates to the FCC it is in full compliance with the rule.
The bill claims exposure to online pornography has “created unique psychological effects for minors, including anxiety, addiction, low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages, and an increased desire among minors to engage in risky sexual behavior” and uses the Supreme Court’s recognition of the government’s compelling interest in protecting the well-being of minors as justification for the bill. It also states blocking and filtering software has not done enough to mitigate underage access to porn, requiring Congress to take additional steps.
“Every day, we're learning more about the negative psychological effects pornography has on minors. Given the alarming rate of teenage exposure to pornography, I believe the government must act quickly to enact protections that have a real chance of surviving First Amendment scrutiny. We require age verification at brick-and-mortar shops. Why shouldn't we require it online?” Lee said in a press release announcing the bill.