By Jacob Mchangama and Ashkhen Kazaryan
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.”
Read More
Jacob Mchangama is the Founder and Executive Director of The Future of Free Speech. He is also a research professor at Vanderbilt University and a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE).
Ashkhen Kazaryan is a Senior Legal Fellow at The Future of Free Speech, where she leads initiatives to protect free expression and shape policies that uphold the First Amendment in the digital age.