Congress is considering a bill that would change the well-settled definition of obscenity and create extensive new risks for the adult industry. The Interstate Obscenity Definition Act, introduced by Sen. Mike Lee, makes a mockery of the First Amendment and should be roundly rejected.
But what if it isn’t? Other seemingly unconstitutional laws have been passed in recent years, with mixed results in the courts. FOSTA/SESTA was rammed through Congress with little meaningful debate; it narrowly survived a constitutional challenge as the D.C. Circuit Court of Appeals effectively rewrote the law to avoid criminalizing protected speech. Dozens of state online age verification laws passed in the last few years have also defied constitutional case law precedent, and remain subject to many pending legal challenges. Section 2257 remains the law of the land, despite several lawsuits and obvious constitutional defects. Unconstitutional laws can create chaos until they are finally struck down by the courts.
As we’ve seen with other laws directed at the adult industry, such as Section 2257 and FOSTA, constitutional challenges can take many years to reach a resolution.
Since the 1970s, the line separating criminal obscenity from constitutionally protected erotic expression has been defined by the Supreme Court’s “Miller Test,” which considers the following factors:
- Whether the average person, applying contemporary community standards, would find that the work appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The Interstate Obscenity Definition Act seeks to replace “contemporary community standards” with a national standard for obscenity. This represents a fundamental departure from the Miller framework and raises substantial First Amendment concerns. Community standards have historically allowed local values to influence what is considered obscene, recognizing that attitudes about sexuality and morality vary widely across regions.
Instead of considering whether the material is patently offensive and “prurient” based on local community standards, the Act would declare content potentially obscene if it “depicts, describes, or represents, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or lewd exhibition of the genitals, with the objective intent to arouse, titillate, or gratify the sexual desires of a person.”
Government prosecutors have often stumbled when attempting to establish that a particular work violates contemporary community standards, resulting in dismissals or acquittals in obscenity prosecutions. Given the changing social mores over the last two decades and the prevalence of adult content on the internet, most contemporary communities accept the existence of a wide variety of pornography as commonplace, not criminal.
The Miller framework often allows defendants in obscenity cases to introduce factual or expert evidence of what type of adult materials the relevant community currently accepts or tolerates. Previous obscenity cases have cited as evidence the types of magazines, videotapes or DVDs that were openly being sold at bookstores in the relevant community, search engine queries by internet users in the community showing the popularity of certain types of adult content, or polls of community residents demonstrating what adult content must depict to offend them. This evidence can shed light on how the community feels about the adult content at issue.
The proposed new law would presumably dispense with any such considerations and allow a prosecution to proceed if the objective of the content was to arouse, titillate or gratify someone’s sexual desires. In other words, the government gets to decide what is offensive or prurient, not the community. That’s not how the First Amendment is supposed to work.
Moreover, the Interstate Obscenity Definition Act removes the “intent” provision in the prohibition on use of telecommunications devices for obscene communications. Currently, to prove a violation of that section, the defendant must have the intent to abuse, threaten or harass another person. If the Act passes, any transmission of an allegedly obscene “comment, request, suggestion, proposal, image, or other communication” using a telecommunications device will be criminalized at the federal level. That small change could prohibit a wide swath of routine communications between adults in the United States.
This is all designed to create increased risks for those involved in the adult industry, and to generate the kind of “chilling effect” on speech that is prohibited by the First Amendment. Federal prosecutors would have broad discretion to charge any adult content as obscene, without being required to prove malicious intent or that the material violated contemporaneous community standards. Citizens will inevitably censor their own speech to avoid being caught in an obscenity investigation dragnet.
The Supreme Court wrestled with these issues decades ago in establishing the above-referenced Miller Test for obscenity. The court was sensitive to the role that the community must play in determining the line separating constitutionally protected expression from criminal obscenity.
In one of the cases leading up to Miller, Justice William Douglas observed that the First Amendment was the product of a robust age, not a prudish one. The nation’s founders brought with them a diversity of highly moral as well as irreverent views. They were rugged individualists dedicated to the founding of a free society unfettered by governmental imposition of morality.
Yet here we are, some 250 years later, considering a law that would allow the government to dictate the confines of lawful speech versus criminal obscenity without input from the community.
Fortunately, SCOTUS has spoken on the test for obscenity in Miller. Despite being offered numerous opportunities to revisit that test, or add new categories of unprotected speech, the court has held the line. Therefore, any proposed change to the test, such as the Interstate Obscenity Definition Act, should be rejected as patently unconstitutional.
Unfortunately, as we’ve seen with other laws directed at the adult industry, such as Section 2257 and FOSTA, constitutional challenges can take many years to reach a resolution. The damage that could be done in the interim, through rampant obscenity prosecutions using a newly minted test from Congress, might be irreparable.
Similar prior attempts by Congress to tinker with the Miller test have failed — and thus far, this latest effort has not gained much traction either. We can therefore remain guardedly optimistic that the Interstate Obscenity Definition Act will likewise end up in the dustbin of failed legislation.
We are unlikely to see an end to such efforts, however, which is why this legislation must be closely followed and opposed at every turn. In defense of both First Amendment freedoms and the rights of the adult industry, we must remain eternally vigilant.
Lawrence Walters heads up Walters Law Group and has represented clients in the adult industry for over 35 years. Nothing in this article is intended as legal advice. Walters can be reached via his website, firstamendment.com, or on social media @walterslawgroup.
