Sen. Mike Lee's obscenity bill is a free speech nightmare
A new bill in Congress threatens to dictate what Americans can read, watch and say online. On May 8, Sen. Mike Lee, R-Utah and Rep. Mary Miller, R-Ill., introduced the 'Interstate Obscenity Definition Act' (IODA) — a recycled attempt to ban online pornography nationwide.
While concerns about pornography, including moral and religious ones, are part of any healthy public debate, this bill does something far more dangerous: It empowers the federal government to police speech based on subjective values. When lawmakers try to enforce the beliefs of some Americans at the expense of others' rights, they cross a constitutional line — and put the First Amendment at risk.
The legislation aims to rewrite the legal definition of obscenity, an area of law that represents a very narrow exception to First Amendment protections.
The IODA seeks to sidestep the Supreme Court's long-standing three-part test for obscenity, established in the 1973 case Miller v. California. The material must appeal to a prurient interest, depict sexual conduct in a patently offensive way, and lack serious literary, artistic, political or scientific value.
Lee's bill would scrap that standard and replace it with a broader, far more subjective definition. It would label content obscene if it simply focuses on nudity, sex or excretion in a way that is intended to arouse and if it lacks 'serious value.'
By discarding the concept of community standards, the IODA removes a key safeguard that allows local norms to shape what counts as obscenity. Without it, the federal government could impose a single national standard that fails to account for regional differences, cultural context or evolving social values.
The bill also deletes the requirement that material be 'patently offensive,' a crucial element that keeps the obscenity test anchored in societal consensus. Instead, it replaces it with a subjective inquiry into whether the work was intended to arouse or titillate. But intent is notoriously difficult to prove and easy to allege. That language could easily sweep in a wide range of protected expression, including art, health information and sex education.
In another relevant case, Reno v. ACLU, the Supreme Court struck down most of the Communications Decency Act for restricting online speech in terms that were unconstitutionally vague and overbroad. The court made clear that the online world is entitled to full First Amendment protection, rejecting analogies to broadcast regulation and insisting that any restriction on speech online must withstand strict constitutional scrutiny. The Interstate Obscenity Definition Act directly undermines this precedent by reviving the same vague, subjective standards that Reno condemned.
The consequences we are outlining aren't speculative. We have decades of history showing how vague obscenity laws have been used to suppress speech that governments don't like and the expression of marginalized communities.
The Comstock Act of 1873, championed by anti-vice crusader Anthony Comstock, was used to suppress a wide range of material from James Joyce's 'Ulysses' to Margaret Sanger's pamphlets on contraception to a Bernard Shaw play to medical books. Under this law, countless people were prosecuted not for distributing pornography, but for challenging prevailing ideas about sexuality, gender and morality.
A more recent example was an Indianapolis ordinance that banned sexually explicit material portraying 'the subordination of women.' The ordinance was drafted by the prominent feminists Catherine MacKinnon and Andrea Dworkin. In 1985, the 7th Circuit Court of Appeals held the ordinance unconstitutional, writing that the state can't mandate preferred viewpoints and that '[a]ny other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.'
First Amendment protections are their most vital when they shield controversial, uncomfortable expressions. Because the Supreme Court has consistently held that expression may not be banned simply because it offends, shocks or challenges mainstream sensibilities, that principle allowed civil rights movements, reproductive freedom advocates and LGBTQ communities to speak, publish and organize.
Moreover, regulating speech on the internet through an obscenity law raises serious concerns about overbreadth and vagueness, two constitutional doctrines that guard against laws that give government too much discretion to censor. When people cannot reasonably predict what is legal and what is not, they self-censor.
Other countries show how laws like these are routinely weaponized to silence dissent and censor culture. In India, obscenity laws have been used to censor films, silence political critics and prosecute artists under vague standards that often reflect cultural conservatism more than actual harm. In authoritarian regimes, vague obscenity laws are routinely used to suppress dissent, punish activists and control access to health and educational materials.
These examples show how easily obscenity regulation becomes a tool of broader censorship, especially when intent, morality or offense are used as standards.
The Canadian experience provides a chilling illustration of how these laws can be weaponized. After Canada implemented an anti-pornography law similar to the Mackinnon-Dworkin model in Butler v. Queen, the consequences were swift and stark. In the first two and a half years following the law's implementation, more than half of feminist bookstores had materials confiscated or detained by customs officials. This decision also led to widespread censorship of women's and LGBTQ literature in Canada.
Even if IODA is adopted into law, it will likely be overturned upon review by the judicial branch. But until it works its way through the courts, there will be considerable collateral damage.
Laws like this chill speech the moment they are introduced. Libraries may rethink their collections. Publishers may delay or pull content. Platforms may become more cautious about hosting sexual or health-related material. The uncertainty alone can be enough to suppress swaths of protected expression on a scale we haven't seen or experienced in modern times.
The introduction of this bill isn't surprising when viewed in the light of Project 2025's policy goal to criminalize and ban pornography. Lee's bill rests on the assumption that long-standing First Amendment precedent goes too far in protecting sexual expression. But in reality, it is precisely because sex and sexuality are so deeply tied to identity, autonomy and social norms that this area of speech needs robust protection. We cannot have a meaningful right to speak if that right disappears the moment we touch on sensitive or controversial topics.
This article was originally published on MSNBC.com
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