Could a modern-day prohibition be underway?
If Sen. Mike Lee (R-Utah) gets his way, the answer to that question will be “yes.” Late last week, the lawmaker introduced a bill to officially attach a legal definition to the word “obscene,” WFLA-TV reported.
The legislation, the Interstate Obscenity Definition Act, was filed based on the Communications Act of 1934. In it, Lee asserts “obscenity is not protected speech under the First Amendment and is prohibited from interstate or foreign transmission under U.S. law.”
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“But obscenity is difficult to define (let alone prosecute) under the current Supreme Court test for obscenity: the ‘Miller Test,'” he added.
The “Miller Test” was introduced into the American vernacular in 1973, following the U.S. Supreme Court decision in Miller v. California, involving a California publisher and author Melvin Miller, both of whom were prosecuted for publishing what was determined to have contained obscene material.
In the incident in question, Miller mailed five unsolicited brochures to his mother and a restaurant manager. The contents of the brochures were explicit, containing photos of men and women engaging in sexual acts with one another.
Then-Chief Justice Warren Burger outlined a litmus test of sorts for jurors, guiding them in identifying “whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”
Pornography is currently legal, but, should Lee’s legislation become law, the obscenity rules put forth in the Communications Act of 1934 would be reinstated. Those rules include censoring content that “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, … lacks serious literary, artistic, political, or scientific value,” according to the IODA.
In a statement explaining the proposal, Lee said his bill would “strengthen the existing general prohibition on obscenity” in the latent Communications Act. In the years since the conception of the so-called “Miller Test,” Lee explained that courts have “struggled to define obscenity” as it relates to free speech and noted the internet has presented “serious challenges” to the “Miller Test,” complexities that weren’t present when Burger first issued his opinion.
The new law would apply to several mediums, including pictures, images, graphic image files, videotapes, films, or other visual depictions. The content classified as obscene would include actual or simulated sexual acts, actual or simulated sexual contact, actual or simulated normal or perverted sexual acts, lewd exhibition of genitals, or a lack of serious, literary, artistic, political, or scientific value.
Such content would be outlawed if its intent is to “arouse, titillate, or gratify the sexual desires of a person.”
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