A Republican-backed Congressional bill seeks to redefine what constitutes “obscenity.”

It’s part of a larger push to ban pornography and criminalize the dissemination of sexually explicit content, including depictions of full or partial nudity in media, webcam chats, and explicit phone conversations.

It might even pave the way for eventually prosecuting sexual partners who consensually send nude selfies to each other. 

Under current federal law, producing or disseminating “obscene” materials is not protected by the First Amendment.

But classifying materials as “obscene” — and allowing law enforcement to prosecute people for spreading or sharing them — is difficult to prove and open to wide interpretation.

To determine what constitutes “obscenity,” courts have relied on a three-pronged test, known as the “Miller test,” which was established by the Supreme Court in a 1973 case (Miller v. California).

Under that criteria, something obscene must appeal to “prurient interests,” depict or describe sexual acts in a “patently offensive” way, and, when taken as a whole, lack “serious literary, artistic, political, or scientific value.” 

If any material fails to meet even one of the three prongs, it is deemed as not obscene.

For instance, a movie that contains nudity could argue that the film, as a whole, has artistic merit, despite any racy scenes contained in it.

Conservatives frequently complain that the standards for determining “obscenity” are subjective, overly vague, and outdated, pre-dating the Internet. They insist that there should be a single, national, standardized definition of “obscenity.”

However, the Supreme Court explicitly rejected such a concept in the Miller v. California, noting that the opinions of the “average person, applying contemporary adult community standards” as to what constitutes obscenity differs from state to state.

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The “Interstate Obscenity Definition Act,” sponsored by Sen. Mike Lee (R-Utah) and U.S. Rep. Mary Miller (R-Ill.), would impose a national standard.

In practice, the bill would adopt the view that virtually any depiction of human sexuality is obscene, as Elizabeth Nolan Brown, writing for Reason, a libertarian-leaning magazine, reports.

The bill would amend the Communications Act of 1934 to redefine “obscenity” as any 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.”

That means that any picture, graphic image file, film, videotape, or other visual depiction of sexually-tinged or erotic content would be deemed “obscene,” and disseminating that material would be prosecutable under the law, punishable by fines of up to $50,000 and up to six months in jail per violation. 

Both Lee — who had previously introduced the bill twice before when the Senate was under Democratic control — and Miller claim that redefining “obscenity” is crucial to protecting minors from being exposed to pornography, which they say is too readily accessible online.

Lee has previously called for banning pornography from the social media platform X and has introduced legislation to require pornographic websites to use age verification technology.

He has also introduced a bill requiring app stores and app developers to verify users’ ages and to mandate parental approval for app downloads by minors.

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The bill would prohibit the transmission of any form of obscene material, removing the “intent” requirement that currently only prohibits the transmission of obscenity for the purposes of abusing, threatening, or harassing a person.

By amending that part of the law, any telecommunications considered “obscene” would be criminalized, even where the intention behind sending the material was not malicious. 

Levy believes that section is designed to target webcam and phone sex operators, although removing the “intent” requirement would allow the government to prosecute any individual who engages in virtual webcamming or “phone sex” with a consenting partner.

It is unclear whether Lee’s bill will gain traction in the Senate, although with Republicans setting the agenda, its chances are better than when Democrats controlled the Senate.

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If right-wing activists mobilize, it’s very likely the measure could be approved by Congress and signed by President Trump in short order.

As noted by Reason, it’s possible that the law could even one day be used to prosecute people who send nude images or selfies of themselves to a consenting partner.

While the Federal Communication Commission has held that text messages are “information services” rather than telecommunications, it is not beyond the scope of possibility that the commission could alter that definition in the future.

If that were to happen, anyone who texts nude images to another person, even consensually, could be prosecuted for sending obscene material.

Robert Corn-Revere, the chief counsel at the Foundation for Individual Rights and Expression, told Reason that he does not believe the law would survive a legal challenge claiming it is unconstitutional.

But the Woodhull Freedom Foundation’s Levy noted that even a lawsuit that successfully overturns the law would result in the censorship and potential loss of information or content that was deemed “obscene” — even if it did not contain descriptions or depictions of nudity or sex.

For example, conservatives routinely claim that books, movies, and even scientific information about LGBTQ people or communities are tantamount to pornography and worthy of being banned.

Under such a broad interpretation or worldview, a book about gay penguin parents raising a chick together or an informational brochure about preventing transmission of HIV — neither containing explicit photos nor descriptions of sex — could both be accused of “appealing to the prurient interest.”

The Interstate Obscenity Definition Act achieves one of the stated goals of “Project 2025,” a blueprint created by the far-right think tank the Heritage Foundation for initiatives that Republican presidential administrations should attempt to tackle: outlawing all pornographic content, and imprisoning those who produce and distribute it. 

But Project 2025 also appears to express support for a broader interpretation of what qualifies as “pornographic.”

The initiative not only calls for the erasure of all legal protections for LGBTQ people and conflates the very concept of gender identity with exposure to pornography but alludes to ongoing culture-war battles over books containing LGBTQ content by calling for teachers and librarians who make so-called “pornography” accessible to minors to be forced to register as sex offenders.

Coupled with right-wing efforts to purge schools and public libraries of anything with “sexual content,” including works that acknowledge the existence of LGBTQ identity, it is not unfathomable that Lee and Miller’s bill could provide a “stepping-stone” for future legislation that would declare LGBTQ-related material as “obscene.”