Nearly five years after the U.S. law SESTA-FOSTA led to the destruction of several online safe havens and screening services for sex workers, yet another piece of federal legislature is threatening to upend sex workers’ livelihoods. And if this one passes through Congress, it could completely change the way porn exists on the internet.
On Wednesday, Republican Senator Mike Lee (UT) introduced the Interstate Obscenity Definition Act into the Senate. According to an explainer published by Lee’s office, the bill would “establish a national definition of obscenity that would apply to obscene content that it transmitted via interstate or foreign communications.” This would effectively strengthen federal laws targeting obscene material — and significantly harm sex workers and NSFW artists in the process.
How would IODA ban porn?
If passed in its current state, IODA would amend the Communications Act of 1934 to federally codify the terms “obscene” and “obscenity” under a modified version of the contemporary U.S. judicial standard, the Miller test. According to the Department of Justice, the current Miller test defines obscene material based on:
- Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
- Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
- Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Under the new definition provided in IODA’s current text, obscenity and obscene material would apply to various forms of multimedia that:
- taken as a whole, appeals to the prurient interest in nudity, sex, or excretion
- depicts, describes, or represents, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or lewd exhibition of the genitals, 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
The bill removes the Miller test’s guidelines on “contemporary adult community standards,” a contentious point in obscenity cases, as legal experts have argued whether community standards should be treated as highly diverse and local phenomenons, according to The First Amendment Encyclopedia.
IODA bypasses this legal discourse completely. If passed, any American who knowingly “makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent” via the internet would be fined or imprisoned under federal law, as it is a “a channel or instrumentality” of interstate commerce.
Originally, the Communications Act simply banned the creation and transmission of obscene material “with intent to annoy, abuse, threaten, or harass another.” Lee’s office claims omitting this phrase “strengthens the existing general prohibition on obscenity.” This would also theoretically ban the distribution of adult content through other channels and instrumentalities, such as highways and cars, respectively.
What would IODA’s enforcement theoretically look like?
If IODA passes, adult industry news outlet XBIZ warns that the bill “would, in effect, outlaw all online sexual content nationwide.” Sex worker and adult industry advocacy group Free Speech Coalition tweeted the bill “would remove porn’s First Amendment protections, and effectively prohibit distribution of adult material in the US.”
IODA, in other words, would serve as a massive blow to sex workers creating sexually explicit material, such as photos, videos, and even sexts. It would also harm adult artists trying to make ends’ meet through sharing, distributing, and selling illustrated sexual content. The vague and uncertain nature of the bill’s wording opens potential legal risk for advertising sexual services too, and even discussing sexual material over the internet.
IODA would also target the creation and distribution of adult content shared privately across the internet, such as explicit images shared in IMs between loved ones, watchdogs warn.
“IODA would instantly criminalize almost all sex workers who share or sell content online. The definition for obscenity is so broad that it would encompass almost all sexual speech now legal. But it would also criminalize fans who share content, or couples who sext or share intimate images on dating apps,” FSC’s Director of Public Affairs Mike Stabile told The Mary Sue. “People don’t think of themselves as ‘porn distributors,’ but under this bill, even retweeting adult content or DMing a dick pic is a criminal act. The headlines are about porn, but this bill criminalizes sex.”
There’s a long history of obscenity claims targeting marginalized Americans. Previously, a Virginia Judge ordered local bookstores to pull two works from local store shelves under an obscenity lawsuit. One of the books impacted, nonbinary illustrator Maia Kobabe’s Gender Queer, is a popular target by the far-right.
Stabile notices a pattern as well. “The attack on porn and sex workers is intimately connected to the attacks on drag, trans healthcare, reproductive rights, book bans and digital privacy. IODA is one part of a larger movement to push sex and gender back in the closet,” he said. “They’re coming after porn because they think people will be too afraid to defend it.”
IODA “has virtually no chance of passage in this Congress,” Stabile told The Mary Sue. But this isn’t the first time we’ve seen Congressional attempts to marginalize sex workers and shut down online pornography. In late 2020, the bipartisan Stop Internet Sexual Exploitation Act vowed to create a series of convoluted, poorly defined, and extremely expensive anti-sexual exploitation initiatives that would be virtually impossible to run among platforms hosting online sexual content. That same year, the EARN IT Act was introduced, threatening to create a series of online best practices that would ultimately crack down on Section 230 protections for adult content and online sex work. The act was introduced yet again this year. Stabile similarly expects Lee will reintroduce IODA next year.
IODA may not land a major victory for censoring porn from the internet. But pay close attention to this bill nonetheless, and others like them. Steps are being made to strip adult content from the internet. And if even one of these bills pass, they could seriously hurt some of the most vulnerable among us: sex workers, queer creators, and anyone who engages with sex to make a living.
“We can’t afford to be dismissive of bills like this. As we saw with Dobbs, precedent means very little these days,” Stabile told The Mary Sue. “This is the time when sex workers and groups like FSC need those who consume adult content to stand up and get involved in the fight.”
The Mary Sue has reached out to Lee for comment.
(Featured image: Gage Skidmore/Flickr (CC BY-SA 2.0))
