A new bill introduced by U.S. Senator Mike Lee (R-UT) aims to standardize the legal definition of “obscenity” across all 50 states - a move his office says is necessary to bring the Communications Act into the digital age.
The proposed legislation, titled the Interstate Obscenity Definition Act, is already raising questions about censorship, constitutional interpretation, and federal overreach.
"Obscenity isn’t protected by the First Amendment, but hazy and unenforceable legal definitions have allowed extreme pornography to saturate American society and reach countless children," said Senator Lee. "Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted."
📜 What’s in the Bill?
The bill amends the Communications Act of 1934 to include a modernized definition of obscenity that reflects internet-age distribution. This is what counts as obscene under the proposed law:
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Appeals to a prurient interest in nudity, sex, or excretion;
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Depicts, describes, or represents sexual acts - real or simulated - with intent to arouse;
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Lacks serious literary, artistic, political, or scientific value.
This standard closely mirrors the current federal test but codifies it directly into federal communications law, giving prosecutors more direct leverage in interstate cases.
🛑 Eliminating the "Intent Loophole"
Another major provision of the bill is the removal of intent language from Section 223(a) of the Act. Currently, prosecution requires proving that obscene content was distributed with the intent to abuse, threaten, or harass. That would be gone under this bill.
According to co-sponsor Rep. Mary Miller (R-IL), this tweak is essential to protecting families:
"This dangerous material is far outside the bounds of protected free speech under the Constitution. I’m proud to lead this effort in the House with Senator Lee to safeguard American families and ensure this material is kept out of our homes and off our screens."
🌐 Why It Matters
Though obscenity is already unprotected by the First Amendment, enforcement has long been hindered by inconsistent definitions across states and a murky standard for what counts as obscene. Critics say this has allowed some of the most extreme content to flourish unchecked on the web.
Supporters say the IODA is not about restricting freedom, but giving law enforcement clear tools in an era where digital content crosses state lines instantly - and often without consequence.
📜 Background
Obscenity is not protected speech under the First Amendment and is prohibited from interstate or foreign transmission under U.S. law. But obscenity is difficult to define (let alone prosecute) under the current Supreme Court test for obscenity: the Miller test.
The origins of the Miller test date back to 1957 when the Supreme Court gave its "prurient interest" test laid out in Roth v. United States. According to the Roth court, material was not considered obscene, unless "to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to the prurient interest." For the next 20 years, the court struggled with refining the Roth test, causing strong dissents, court splintering, and lower court confusion at the applicability of the standard. In 1973, the Supreme Court sought a new test for obscenity in Miller v. California. The Miller test defines speech and expression as "obscene" if:
- the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Applying a pre-internet standard to the internet era causes serious challenges. Which "contemporary community standards" should be applied? Or what "applicable state law" should be applied to determine patent offensiveness?
Because the internet is a "channel or instrumentality" of interstate commerce, Congress’s current obscenity prohibitions are severely diminished. In response, Sen. Lee is proposing the Interstate Obscenity Definition Act (IODA), which would establish a national definition of obscenity that would apply to obscene content that is transmitted via interstate or foreign communications.
Interstate Obscenity Definition Act
Specifically, IODA:
- Defines "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.
- Strengthens the existing general prohibition on obscenity in the Communications Act (47 U.S.C 223(a)) by removing the "intent" requirement that only prohibits the transmission of obscenity for the purposes abusing, threatening, or harassing a person.
