Republican Utah Senator Mike Lee introduced two bills this week aimed at combatting online pornography.
Lee introduced the bills on Wednesday. The Shielding Children’s Retinas from Egregious Exposure on the Net (SCREEN) Act would direct the FCC to mandate that all pornographic websites adopt age verification technology to keep children from accessing porn online. The Interstate Obscenity Definition Act (IODA) would establish a nationwide definition of obscenity, reforming the Supreme Court’s “Miller Test” and enabling prosecution of obscene content transmitted across states or from foreign countries.
“Every day, we’re learning more about the negative psychological effects pornography has on minors,” Lee said in a statement unveiling the SCREEN Act. “Given the alarming rate of teenage exposure to pornography, I believe the government must act quickly to enact protections that have a real chance of surviving First Amendment scrutiny. We require age verification at brick-and-mortar shops. Why shouldn’t we require it online?”
The SCREEN Act would direct the FCC to require commercial websites that regularly create or platform pornographic content to establish age verification technology, to ensure that users of those websites are not minors, and that minors are prevented from accessing the contents of such websites. Notably, the bill explicitly states that any proposed FCC regulation must make clear that simply asking a user to confirm that he or she is a legal adult is not a sufficient screening measure.
The IODA would establish a federal definition of obscenity that would apply to “a picture, image, graphic image file, film, videotape, or other visual depiction.” The bill would define obscene content as content that:
(i) taken as a whole, appeals to the prurient interest in nudity, sex, or excretion;
(ii) 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
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value.
In a one-pager describing the bill, Lee said that while obscenity is not protected by the First Amendment, it is difficult to prosecute under the “Miller Test,” the legal test established by the Supreme Court in Miller v. California in 1973. Under the Miller Test, content is only obscene if:
(1) the average person, applying contemporary community standards, would find that the work, taken as a
whole, appeals to the prurient interest;
(2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and
(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
“As we consider the application of the Miller Standard to the internet, we run into serious challenges,” the one-pager reads. “Which ‘contemporary community standards’ should be applied? Or what ‘applicable state law’ should be applied to determine patent offensiveness?”
“Because the internet is a ‘channel or instrumentality’ of interstate commerce, Congress’s current obscenity prohibitions are severely diminished,” it added.
Lee previously proposed a bill in September to prevent sexual exploitation on porn sites. The Preventing Rampant Online Technological Exploitation and Criminal Trafficking (PROTECT) Act would require age and consent verification of those depicted in sexually explicit or intimate materials online. It would also allow victims of sexual exploitation to have their images removed and block re-uploads, including any altered or edited versions. Websites that fail to remove the reported content could face penalties of up to $10,000 per day. Victims could also file civil actions against these sites.
Brandon Drey contributed to this report.