Mike Lee Wants To Make Porn A Federal Crime
And a government small enough to fit into your bedside table.
Hey! Remember like … less than a year ago, when we were all talking about the Heritage Foundation’s Project 2025, and Republicans were having conniption fits all over the place trying to claim (after years of Pizzagate and other QAnonsense) that we were the real conspiracy theorists? Because of how Trump and Republicans would never do any of the things in that guide book?
Well, most of those things are being done now, or are in the process of getting done. The purging of federal employees, the expansion of executive powers, dismantling the Department of Education, defunding the Corporation for Public Broadcasting and NPR, going after Head Start, eliminating “diversity, equity, and inclusion” programs, cutting funding for Medicaid, kicking unfriendly journalists out of press briefings, directing the DOJ’s Civil Rights division to focus on “anti-white racism” instead of actual discrimination and racism, ending consent decrees, and more.
If you will recall, one of the things most frequently cited as being an especially ridiculous example of anti-Trump hysteria was the idea that Republicans would try to ban pornography (not sure why, given that they’d done it before) or sex toys or anything else requiring the government to get small enough to fit into one’s bedside table.
Well, just last week, Senator Mike Lee of Utah introduced his Interstate Obscenity Definition Act, making the first move towards making pornography a federal crime. Ta-da! The bill was also introduced in the House by Rep. Mary Miller (R-Illinois).
Specifically, the law would allow for Mike Lee to define “obscenity” for the whole of the United States — obscenity being among very few exceptions to the First Amendment’s right to free speech. While the definition he proposes borrows from the Miller Test, it is far more broad.
The Miller Test holds that for something to be considered obscene, it must fulfill the following criteria.
Appeals to prurient interests
Depicts sexual conduct in a patently offensive way
Lacks serious literary, artistic, political, or scientific value
The Lee/Other Miller test, however, eliminates the “patently offensive” part of the test and replaces it with “intent to arouse” — which would cover pretty much everything from actual pornography to the Sports Illustrated Swimsuit issue.
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.
Ricci Joy Levy, president and CEO of the Woodhull Freedom Foundation, told Reason that the definition was so broad that it could even cover something like Game of Thrones.
“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,” Sen. Lee said in a statement. “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”
Except the bill wouldn’t just make it more difficult for children to access porn, it would also bar adults from accessing not just pornography, but any movie or television show deemed insufficiently artistic to allow nudity.
“The Interstate Obscenity Definition Act equips law enforcement with the tools they need to target and remove obscene material from the internet, which is alarmingly destructive and far outside the bounds of protected free speech under the Constitution,” Rep. Miller explained. “I’m proud to lead this effort in the House with Senator Lee to safeguard American families and ensure this dangerous material is kept out of our homes and off our screens.”
This is Lee’s third attempt at passing this legislation, the first two having gone nowhere. While that may induce a sigh of relief, his previous attempts occurred in December of 2022 and June of 2024, when Democrats were in control of the Senate. Republicans have a majority now and, outside of Rand Paul, there’s not really a libertarian faction that might strongly oppose it. Most have also realized that they no longer need to pretend to believe in free speech rights in order to force far-right, white supremacist views into the mainstream anymore and have since gone back to their traditional book burnin’ ways.
There is a far stronger and more militant strain of male-led anti-sex puritanism in the younger factions of the Republican Party than there even was during the “Silver Ring Thing” days — with groups like the Proud Boys barring masturbation and the Groypers shunning both masturbation and sex. Just a few weeks ago, The Federalist ran an article titled “Art Shouldn’t Get A Free Nudity Pass Just Because It’s Art.” So far, eight states — Arkansas, Louisiana, Mississippi, Montana, North Carolina, Texas, Utah, and Virginia — have created privacy-eroding age verification laws for porn sites.
Not only would the bill redefine obscenity, it would quite possibly make consensual sexting and phone sex illegal by “[strengthening] the existing general prohibition on obscenity in the Communications Act (47 U.S.C 223(a)) by removing the ‘intent’ requirement that only prohibits the transmission of obscenity for the purposes abusing, threatening, or harassing a person.”
This would also make it illegal for sex workers to do webcam work over the internet — and as much as we’d really all love to stick it to Andrew Tate, it’s not worth the erosion of our civil liberties to do so.
Whether or not one likes or approves of pornography is not the point. The point is that it’s a slippery slope to censorship of all kinds, and Mike Lee has designed this one to be even more slippery than usual. As Levy noted in Reason, this legislation, if passed, could easily be used to “target speech by and about LGBTQ activity and, especially, about transgender people.”
And we know for damn sure it would be.
The quote in the main image of this article, from John Waters, about how “pornographers have always been on our side” refers not to their actual content, but to the fact that many of the legal fights fought by pornographers have directly benefited artists who don’t necessarily have the financial ability to fight those fights. Or, as he told the Miami Herald, “because they’re the only people who can afford mafia lawyers to fight the cases and win so artists and filmmakers and painters can use the same subject matter and not be sued.” That’s true. Larry Flynt was a hideously objectionable person in many, many ways, but it was Hustler Magazine, Inc. v. Falwell that established that satire and parody were covered by the First Amendment.
It’s all connected, and Mike Lee knows it’s connected. His goal is not the protection of children but of censorship and Christian Nationalism, just as ours must be the prevention of censorship and Christian Nationalism. He may still have a ways to go with this bill, but we are no longer in the comfortable position of being able to say “it’ll never happen” about literally anything the Right wants to do, and so we must fight it every step of the way.
PREVIOUSLY ON WONKETTE!
I remember one time my wife walked in on me while I was watching porn.
In a panic reflex I instantly changed to a random channel, the fishing channel.
As my wife walks out again she says: "You should stay on the porn channel, you already know how to fish."
Just to clarify: the Constitution according to Lee gives you the right to Nazi hate speech but not to show someone a photo of a boob.