Given the Chance, Would the Supreme Court Redefine “Obscenity”?

For all the usual reasons that bills like IODA are rolled out with great fanfare, only to die later with nary an audible whimper, Lee’s attempt to redefine “obscenity” will probably never have an impact on the adult entertainment industry.

“As drafted, the IODA bill has no chance of passing the Senate,” said Jeffrey Douglas, Board Chair of the Free Speech Coalition, adding that obscenity prosecutions “are of interest only to campaigning Republicans.”

For the sake of argument though, let’s suppose the bill does pass; what then?

“This legislative attempt to redefine obscenity is likely to be met with a constitutional challenge since it seeks to create a new category of unprotected speech that is inconsistent with U.S. Supreme Court precedent,” attorney Larry Walters told YNOT. “The test for separating constitutionally protected erotic speech from illegal obscenity has been established since the Court’s 1973 decision in Miller v. California. The Court has not changed this test despite numerous legal challenges and opportunities to reconsider the decision in the last five decades. Congress lacks the power to create a new definition for obscenity since this is a constitutional issue, and the boundary between protected and unprotected speech has been established by the Court.”

Douglas concurred with Walters, noting that Lee’s bill is “entirely inconsistent” with the Miller Test.

“Only a super-activist Federal judge would uphold the statute,” Douglas said. “Likewise, it would be difficult to find a three-judge Court of Appeals panel to uphold a statute so inconsistent with binding precedent.”

Reed Lee, FSC’s Legal Committee Chair, agreed with Douglas and Walters that IODA is extremely unlikely to withstand court scrutiny, should it ever make it that far. In his analysis of IODA’s language, Lee observed a “rather subtle but absolutely critical” point about the bill.

“It boils down to the word ‘includes’,” Lee explained. “Every previous constitutional obscenity test sought to define the limits of what could be obscene. But not this one! ‘Includes’ defines the minimum of what is constitutionally unprotected obscenity. Who knows what else there might be?!!? Again, under the contemporary constitutional approach… the subtle abandonment of an all-embracing definition of obscenity is unquestionably fatal in the long run. The required challenge procedures may be elaborate, but an easy substantive one under existing constitutional law.”

This all sounds encouraging, from an adult industry perspective. But for many years, it was common to hear that bans on abortion should be of no concern to reproductive rights advocates, because it was so unlikely the Supreme Court would ever overturn Roe v. Wade – and then along came SCOTUS’ decision in Dobbs v. Jackson Women’s Health Organization.

So, extending our (admittedly unlikely) hypothetical yet further, are these same attorneys confident the Supreme Court won’t go messing with the Miller standard, if offered the invitation to do so?

“If cert were granted, I have no confidence that the current majority of the Court would not make the minimum standard for an obscenity worse than Miller,” Douglas said. “However, I do not anticipate that cert would be granted even if the bill were signed into law.”

Asked whether he was concerned about the possibility the current Supreme Court might come up with reasoning under which Lee’s bill is Constitutional, Lee responded with a definitive “Yes.”

“This may be the entire point of the bill,” Lee said. “It might be that Sen. Lee is too stupid or stubborn to recognize the foregoing constitutional problems. But it is also quite possible that he and others are hoping for a very profound change in obscenity (and other constitutional) law. He may be betting that such a change is in the offing.”

Walters said that while “it does not appear that the Court has an appetite to reexamine the obscenity test,” he added that if it turns out the court does have such an appetite, “the adult industry should brace for a potential blockbuster decision that could have far reaching consequences for free expression in the United States.”

On the other hand, any conservatives who might welcome the idea of a major shift in the contours of the First Amendment’s protections might want to think twice about the appeal of that notion.

“I saw this bill the day it was introduced and my first reaction was (and remains) that moral conservatives are trying to ‘force the spring’ on this and other profound changes in constitutional law,” Lee said. “But it will not be a slam-dunk for them. Especially after Trump started whining about getting banned from Twitter, conservatives have realized that freedom of expression cuts both ways. Some will suggest that they can have their cake and eat it too, with changes which will affect us (to put it crudely) but not them. But our job will be to show that it will not be so simple – that conservatives have much to fear from weakening the First Amendment.”

In other words, when it comes to bills like Lee’s, conservatives should be careful what they wish for, because they just might get it.

Here’s hoping that if IODA (or any similar bill) becomes law and the Supreme Court has occasion to take up the case, the Court’s conservative justices have ears to hear that warning.