Redefining Obscenity

May 28, 2025

In their crusade against sexual freedom and the 1st Amendment, Republican Senator Mike Lee and House member Mary Miller have introduced bills that broaden the definition of obscenity to include any depiction of sex meant to arouse a person. Their explicit goal is to define obscenity “for the internet age” so that sexual content “can be taken down and its peddlers prosecuted.”

Currently, to determine whether content is obscene, courts apply the test from Miller v. California, which was decided in 1973. In Miller, the Supreme Court ruled that something obscene must: (i) appeal to “prurient interests”; (ii) depict or describe sexual acts in a “patently offensive” way; and (iii) taken as a whole, lack “serious literary, artistic, political, or scientific value.” To assess each of these prongs, courts consider what a reasonable person would think.

These recent bills, including the proposed Interstate Obscenity Definition Act (IODA), turn Miller on its head. In IODA’s proposed test for obscenity, no longer would courts need to consider what a reasonable, average person would think about “prurient interests” or “value.” And gone is any requirement that content be “patently offensive” to be obscene. Instead, Sen. Lee proposes a much lower bar: content need only depict sexual acts or genitals in a way meant to “arouse, titillate, or gratify the sexual desire of a person.” That is, if there is anything related to sexuality and pleasure, there’s a good chance it would meet IODA’s definition of obscenity.

We at the Woodhull Freedom Foundation are horrified. Our President and CEO, Ricci Joy Levy, put it perfectly in her interview with Elizabeth Nolan Brown. Levy notes that under this definition, a TV show like Game of Thrones could fall under its purview and thus be banned.

Levy explains, “The point is to loosen the definition of obscenity so it’s more broad and the government is removed of the obligation to prove patent offensiveness.” In so doing, the government has more power to target porn producers and distributors, including through criminal sanctions.

We firmly oppose IODA. We urge you to write to your elected officials and ask that they oppose IODA in its entirety.