In 1964, Justice Potter Stewart said of trying to define obscenity, “I know it when I see it.” But a new bill sponsored by Sen. Mike Lee would — for the first time — clearly define obscenity under federal law and make it easier for prosecutors to lock up individuals for distributing obscene material.
The Interstate Obscenity Definition Act (IODA), which Lee introduced last week, would amend the current definition of obscenity under the Communications Act of 1934 and set a new federal standard for what is considered obscene.
“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,” Lee said in a statement last Thursday. “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”
Currently, it is not a crime to simply possess obscene material unless it involves minors or if there is an intent to sell or distribute it. But no federal law strictly defines obscenity, and courts rely on what’s known as the Miller test to determine what is considered obscene.
The three-pronged Miller test considers something obscene if it appeals to “prurient interests,” if it describes or depicts sexual acts in a “patently offensive way … specifically defined by the applicable state law” and if it lacks “serious literary, artistic, political, or scientific value.”
Lee’s bill would change the second prong of this test. Instead of applying state law, it would add a definition whereby content would be deemed obscene if it depicts or describes “actual or simulated sexual acts with the objective intent to arouse, titillate or gratify the sexual desires of a person.”
In a release when he introduced the bill last week, Lee’s office argued that the current definition of obscenity is “difficult to assess and prosecute” and that its standards are “subjective and vague.”
“The new definition removes dependence on ever-changing and elusive public opinion, replacing ambiguity with practical standards to make obscenity identifiable,” it read. “This change will prevent obscene material such as pornography from evading prosecution by relying on the legal confusion of differing standards between states. Under IODA, law enforcement will be empowered to identify and prevent obscenity from being transmitted across state lines.”
Lee has introduced his IODA bill twice before, in 2022 and 2024. In both cases, the bill did not receive a committee hearing. If IODA were signed into law, it would not explicitly ban pornography in the U.S., but would make it easier to prosecute its distribution.
The Utah senior senator’s attempt to redefine obscenity has attracted significant national attention. Some opponents of the law have argued that the change would do the opposite of what Lee has said he intends and instead make the definition of obscenity broader and more subjective.
“By discarding the concept of community standards, the IODA removes a key safeguard that allows local norms to shape what counts as obscenity,” Jacob Mchangama and Ashkhen Kazaryan from the nonpartisan think tank The Future of Free Speech wrote in an op-ed Tuesday. “Without it, the federal government could impose a single national standard that fails to account for regional differences, cultural context or evolving social values.”
IODA is among a number of bills Lee has introduced in the early months of this congressional session that would crack down on explicit digital content, including a bill that would require age verification for app store purchases and another that would require all commercial pornography websites to adopt age verification measures. Statewide versions of both bills have been previously adopted in Utah.
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