Mike Lee’s “Internet Obscenity Definition” is an Unconstitutional Mess

The Shielding Children’s Retinas from Egregious Exposure on the Net (“SCREEN”) Act, is a proposal that would require adult entertainment websites to implement age verification methods in an attempt to prevent the viewing of age-restricted content on the web by minors. That sounds reasonable, right? I think that you should reconsider that.

The other bill Lee introduced is the Internet Obscenity Definition Act (“IODA”). According to a statement released by Lee, IODA would codify a definition for obscenity that is transmitted over the internet.

Despite the fact that the Department of Justice has an entire section dedicated to enforcing the existing laws for obscenity, the good Sen. Lee maintains that the current standard – known as the “Miller test” – is not enough. One aspect of IODA is to essentially clarify that the classification of obscenity covers almost all types of consensual and legal forms of pornographic content available on the internet.

In the benchmark case Miller v. California, the Supreme Court majority outlined what Chief Justice Warren Burger at the time called guidelines for jurors to consider in deciding obscenity cases across the United States. These guidelines form the three “prongs” of the Miller test. The three prongs ask: “whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; 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.”

By proposing a national definition of obscenity, Sen. Lee seeks to adopt an extremely puritanical and authoritarian interpretation of that legal term. IODA defines content as obscene when “(i) taken as a whole, appeals to the prurient interest in nudity, sex, or excretion, (ii) 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, (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Defining obscenity is no simple process. That’s clear. But, the definition Sen. Lee provides is extremely broad and could directly impact the production of legal adult entertainment content. Lee’s proposal is overreaching, anti-First Amendment, and anti-American.

The Supreme Court also ruled in Reno v. American Civil Liberties Union that it is nearly impossible to enforce a national regulation that seeks to define obscene content in a manner that equitably protects the First Amendment for anyone who uses the web. The court’s decision in the case struck down the bulk of the Communications Decency Act of 1996, while retaining the controversial but crucial safe-harbor provisions of Section 230. Obscenity remains illegal under Supreme Court precedent, but prosecutors must meet the high bar the Miller test requires.

Sen. Lee’s bill would broaden the definition of obscenity significantly, taking it well beyond the bounds of the Miller test. Lee intends to take the act of consensual sexual activity among one or more people, the filming and photography of such an act, and of content that is legally produced by companies and content creators who are actively regulated by the government, and turn it into a huge bureaucratic monstrosity of oppressive do-goodery that violates clearly the First Amendment as it is currently interpreted by the courts.

IODA is also textbook legislative overkill that wouldn’t solve the perceived problems Lee presents and would make the jobs of law enforcement and regulatory agencies who do engage in fighting legitimate cases of obscenity and the unlawful exploitation of minors much more challenging. In fact, the Department of Justice helps oversee one of the world’s most robust and successful law enforcement mechanisms for countering illegal content on the internet.

Paired with the SCREEN Act, Sen. Lee’s IODA shows no regard for the First Amendment — unless it caters to his religious mission and to the interests of his political backers, of course. Both chambers of Congress need to kill these two bills to send a message.