Republican Senator Mike Lee of Utah has introduced a pair of bills that put online pornography in the crosshairs, including legislation that could potentially outlaw pornography nationwide outright by adjusting legal precedent.
The Internet Obscenity Definition Act (IODA) and Shielding Children's Retinas from Egregious Exposure on the Net (SCREEN) Act were introduced Wednesday.
The IODA legislation would "establish a national definition of obscenity" transmitted via interstate or foreign communications—which Lee argues does not currently exist, as the Miller Test has been the long-held standard.
David Hudson, a law professor at Belmont University, previously wrote that obscenity—which is not currently protected under the First Amendment—is "one of the most controversial and confounding areas of First Amendment law."
The Supreme Court was confronted with the question of obscenity in the 1957 case Roth v. United States, which contested the constitutionality of a federal law prohibiting the mailing of any material that is "obscene, lewd, lascivious, or filthy...or other publication of an indecent character."
It was ultimately determined, via an opinion drafted by then-Justice William J. Brennan, that "obscenity is not within the area of constitutionally protected speech or press."
The so-called Miller Test, emanating from the 1973 case Miller v. California, operates on the following guidelines that have become synonymous with legal precedent in obscenity cases:
Lee's bill argues that the "Miller Standard" does not say which "contemporary community standards" should be applied, or what "applicable state law" should be applied to determine patent offensiveness.
IODA instead would define "obscenity" within the Communications Act of 1934 as content that:
"While a national standard has more appeal than overly puritanical local standards, there are still inherent vagueness problems with obscenity laws," Hudson said. "For example, what the hell is a 'prurient interest' in sex (the first prong of the Miller test and used in the bill)? The case law mentions having a morbid or shameful interest in sex—well, how do we draw the line between a healthy interest in sex and an unhealthy interest in sex?"
Hudson also referenced a quote from former Associate Supreme Court Justice William O. Douglas, who wrote that obscenity was not an exception to the First Amendment.
"For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals," he wrote. "They are too personal to define and too emotional and vague to apply."
Critics argue that Lee's bill could open the door for adult content creators or distributors across the U.S. to face prosecution based on his proposed standards.
Attorney Andrew M. Lieb, managing partner of Lieb at Law, P.C., told Newsweek this particular bill presents a legal slippery slope.
While a great concept in theory due to the sheer availability of online pornography, he said it is "terrible execution" on Lee's behalf.
"The senator wants almost all pornography to be swept under the rubric of obscenity and therefore, not subject to First Amendment Protections," Lieb said. "Whatever happened to fighting for our constitution?...Senator Lee appears to believe himself smarter than the learned Justice (Berger), and his bill to create a national pornography definition law changes the line between obscenity and protected speech by ignoring the time period that the work is evaluated, a review of it in its entirety, and, most importantly, the use of community standards."
Pornography as a public health crisis
The Screen Act would essentially require all commercial pornographic websites to adopt age-verification technology for children's protection from such content, with directive from the Federal Communications Commission (FCC).
Lee noted how since 2016, a total of 16 states have recognized pornography as a public health crisis, including Arizona, Florida, Pennsylvania and Lee's home state of Utah.
Congress's past attempts to prevent children from accessing online pornography have, by and large, failed First Amendment scrutiny, Lee said.
The bill states that within each related Supreme Court case from the last 30 years, the Court found that Congress did possess a "compelling government interest" to shield children from pornographic content—though claims it did not "use the least restrictive means to achieve such interest."
The bill references a 2016 study arguing that technology has proven to be ineffective in protecting children from accessing online pornographic content, exposing almost 80 percent of teenagers between the ages of 12 and 17.
"Every day, we're learning more about the negative psychological effects pornography has on minors," Lee said in a statement. "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?"
In 2011, the American Civil Liberties Union (ACLU) published a piece about combating child pornography without sacrificing online privacy. The article said that "child pornography commercially exploits" the harm of child sexual abuse.
"We all want to catch those responsible for sexually exploiting children," wrote Chris Calabrese of the ACLU. "The key is to do it in such a way that we don't impose mandates on the entire internet and threaten everyone's privacy."
Lieb, a parent, called this bill a step in the right direction but said it also presents ambiguity and is "tone-deaf" on its merits.
He questioned whether a minor who is 7 years old should have the same restrictions as a 17-year-old. The definition of pornography is also under a microscope, as Lieb wonders if that includes anatomical pictures or health lessons.
"Restricting pornography from the underaged is not enough," he said. "Hopefully, amendments to the act will go further and restrict other topics like alcohol, drugs, guns, and, as every parent will tell you, in-game purchases."
A study published in May by the Institute for Family Studies reported that men are four times more likely than women to report having watched pornography in the past month, 44 percent versus 11 percent, while men in their 30s and 40s are the most frequent observers.
Newsweek reached out to Lee's office, the ACLU, and multiple pornographic websites including Pornhub, RedTube, Xhamster and YouPorn for comment.
www.newsweek.com
The Internet Obscenity Definition Act (IODA) and Shielding Children's Retinas from Egregious Exposure on the Net (SCREEN) Act were introduced Wednesday.
The IODA legislation would "establish a national definition of obscenity" transmitted via interstate or foreign communications—which Lee argues does not currently exist, as the Miller Test has been the long-held standard.
David Hudson, a law professor at Belmont University, previously wrote that obscenity—which is not currently protected under the First Amendment—is "one of the most controversial and confounding areas of First Amendment law."
The Supreme Court was confronted with the question of obscenity in the 1957 case Roth v. United States, which contested the constitutionality of a federal law prohibiting the mailing of any material that is "obscene, lewd, lascivious, or filthy...or other publication of an indecent character."
It was ultimately determined, via an opinion drafted by then-Justice William J. Brennan, that "obscenity is not within the area of constitutionally protected speech or press."
The so-called Miller Test, emanating from the 1973 case Miller v. California, operates on the following guidelines that have become synonymous with legal precedent in obscenity cases:
- Whether the average person, applying contemporary community standards, would find that 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.
Lee's bill argues that the "Miller Standard" does not say which "contemporary community standards" should be applied, or what "applicable state law" should be applied to determine patent offensiveness.
IODA instead would define "obscenity" within the Communications Act of 1934 as content that:
- Is 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.
"While a national standard has more appeal than overly puritanical local standards, there are still inherent vagueness problems with obscenity laws," Hudson said. "For example, what the hell is a 'prurient interest' in sex (the first prong of the Miller test and used in the bill)? The case law mentions having a morbid or shameful interest in sex—well, how do we draw the line between a healthy interest in sex and an unhealthy interest in sex?"
Hudson also referenced a quote from former Associate Supreme Court Justice William O. Douglas, who wrote that obscenity was not an exception to the First Amendment.
"For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals," he wrote. "They are too personal to define and too emotional and vague to apply."
Critics argue that Lee's bill could open the door for adult content creators or distributors across the U.S. to face prosecution based on his proposed standards.
Attorney Andrew M. Lieb, managing partner of Lieb at Law, P.C., told Newsweek this particular bill presents a legal slippery slope.
While a great concept in theory due to the sheer availability of online pornography, he said it is "terrible execution" on Lee's behalf.
"The senator wants almost all pornography to be swept under the rubric of obscenity and therefore, not subject to First Amendment Protections," Lieb said. "Whatever happened to fighting for our constitution?...Senator Lee appears to believe himself smarter than the learned Justice (Berger), and his bill to create a national pornography definition law changes the line between obscenity and protected speech by ignoring the time period that the work is evaluated, a review of it in its entirety, and, most importantly, the use of community standards."
Pornography as a public health crisis
The Screen Act would essentially require all commercial pornographic websites to adopt age-verification technology for children's protection from such content, with directive from the Federal Communications Commission (FCC).
Lee noted how since 2016, a total of 16 states have recognized pornography as a public health crisis, including Arizona, Florida, Pennsylvania and Lee's home state of Utah.
Congress's past attempts to prevent children from accessing online pornography have, by and large, failed First Amendment scrutiny, Lee said.
The bill states that within each related Supreme Court case from the last 30 years, the Court found that Congress did possess a "compelling government interest" to shield children from pornographic content—though claims it did not "use the least restrictive means to achieve such interest."
The bill references a 2016 study arguing that technology has proven to be ineffective in protecting children from accessing online pornographic content, exposing almost 80 percent of teenagers between the ages of 12 and 17.
"Every day, we're learning more about the negative psychological effects pornography has on minors," Lee said in a statement. "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?"
In 2011, the American Civil Liberties Union (ACLU) published a piece about combating child pornography without sacrificing online privacy. The article said that "child pornography commercially exploits" the harm of child sexual abuse.
"We all want to catch those responsible for sexually exploiting children," wrote Chris Calabrese of the ACLU. "The key is to do it in such a way that we don't impose mandates on the entire internet and threaten everyone's privacy."
Lieb, a parent, called this bill a step in the right direction but said it also presents ambiguity and is "tone-deaf" on its merits.
He questioned whether a minor who is 7 years old should have the same restrictions as a 17-year-old. The definition of pornography is also under a microscope, as Lieb wonders if that includes anatomical pictures or health lessons.
"Restricting pornography from the underaged is not enough," he said. "Hopefully, amendments to the act will go further and restrict other topics like alcohol, drugs, guns, and, as every parent will tell you, in-game purchases."
A study published in May by the Institute for Family Studies reported that men are four times more likely than women to report having watched pornography in the past month, 44 percent versus 11 percent, while men in their 30s and 40s are the most frequent observers.
Newsweek reached out to Lee's office, the ACLU, and multiple pornographic websites including Pornhub, RedTube, Xhamster and YouPorn for comment.
Republican senator pushes law to effectively outlaw online porn nationwide
Legislation proposes changes based on age and First Amendment laws, including a new national definition of obscenity.
www.newsweek.com
