WASHINGTON—U.S. Sen. Mike Lee, a far-right Republican from Utah, this week reintroduced his highly controversial Interstate Obscenity Definition Act (IODA). If passed, the act would define a national standard for obscenity that isn't dictated by the Miller test and is in the spirit of unconstitutional Comstock laws.
Rep. Mary Miller, another far-right Republican from Illinois, serves as the House of Representatives sponsor. Lee explained in a press statement, "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."
Under definitions outlined in the proposed IODA legislation, virtually any form of sexual expression that is considered pornographic would be classified as obscene.
The bill considers anything to be an example of obscenity 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."
While this closely resembles the current Miller test for obscenity (see below), it considerably broadens the scope of what can be criminalized. As defined by the U.S. Supreme Court, the Miller test consists of three prongs that must all be met for content to be defined as "obscene" and, therefore, not entitled to free speech protections. Lee's bill does not require that all three prongs be met, and furthermore, it intends to apply a definition based on so-called "national community standards" of what is obscene. Typically, "local community standards" are the definition. These changes ultimately violate First Amendment protections for legal consensual porn and risk unconstitutional overreach through subjective and overly broad language.
The Miller test stipulates that for material to be considered obscene, "[the] average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interests; the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions as specifically defined by applicable state law; and the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
But the Interstate Obscenity Definition Act intends to take a pickaxe to the pornography industry. IODA has been proposed two times before the current attempt. The first introduction of the bill occurred in December 2022 as a statement bill at the end of the legislative session. And it was subsequently reintroduced in June 2024.
Neither attempt has advanced beyond the committee phase. IODA could likely advance out of committee this time around, considering the right-wing makeup of Congress.
Corey Silverstein, a First Amendment attorney focusing on criminal defense and the adult entertainment industry, told AVN that Sen. Lee's bill is pointless.
"He is absolutely ridiculous and has no authority to overrule the U.S. Supreme Court," Silverstein said. "I’d rather he find a hobby than continue to introduce far-right laws that have no chance of accomplishing anything other than wasting taxpayer dollars and the courts' time that it will take to strike down this preposterous proposed law."
