Utah senator proposes bill that would enact nationwide pornography ban

Utah’s senior senator, having survived a reelection challenge from an independent candidate backed by state Democrats, is launching a two-pronged assault on companies that host pornography on their websites.

Mike Lee unveiled the twin pieces of legislation this past week, stating an intent to protect children online. One bill, dubbed “Shielding Children's Retinas from Egregious Exposure on the Net (SCREEN)”, is clearly aimed at doing so, and would require such websites to ask users to provide their age before viewing content.

But a second piece of legislation introduced by the senator on the same day takes a much broader cudgel against pornographic content, and would remove a key protection that sexually explicit content currently enjoys in the United States.

As of right now, the right of Americans and others to share such content across state lines in the US (including online) is protected by the so-called “Miller Test”, a three-step test outlined by the Chief Justice of the Supreme Court in a 1973 ruling which determines when protected sexual content crosses the line into the unprotected realm of “obscenity”. Mr Lee’s legislation would eliminate one of those steps, specifically the one defining “obscenity” as content that “depicts or describes” sex “in a patently offensive way”.

Removing that language would mean that all sexual content, offensive or not, would fall into the unprotected definition of obscene content, which is prohibited from being transmitted across state lines, as well as between individuals in certain states.

Under Mr Lee’s legislation, the new standard for obscene content in the US Communications Act of 1934 would be material that “taken as a whole appeals to the prurient interest in nudity, sex, or excretion” and which “depicts, describes, or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person”.

The senator’s broader attack on the porn industry has yet to notch a single cosponsor as of this weekend; very little significant legislation of any type is likely to pass the near-evenly-divided upper chamber in the coming weeks or months, and Mr Lee’s bill has a steeper battle uphill than most.

One of the most conservative members of the Senate, Mr Lee failed to win even his own fellow Utah Senator Mitt Romney’s support in his reelection bid this fall. Evan McMullin, an independent backed by Democrats in an aspirational but ultimately futile effort, fell 11 points short of the incumbent in last month’s midterms.

It’s also possibly somewhat telling that Mr Lee is not branding the legislation, at least publicly, as an attempt to ban porn outright.

But advocates for free speech online and opponents of conservatives’ efforts to narrow the window of what content is acceptable in American culture are viewing the bill as a possible sign of the right’s next assault in their culture war against progressivism and the left.

Mike Sabile of the Free Speech Coalition warned as much in an interview with Vice News, predicting a backlash against sexual content including sex ed in schools that could follow the right’s renewed push against gay marriage rights and the visibility of LGBT Americans in pop culture and society as a whole.

“We are in a very reactionary cultural moment,” he explained.

”I spend a lot of time in anti-porn and anti-sex work forums, monitoring what’s going on in terms of those conversations, and there is obviously a rise in panic around things like pornography and sex education in schools,” Mr Sabile told Vice News. “I think we have to see this as part of a broader push to really censor speech about sex.”

This article was amended on December 21 2022 to remove a reference to there being ‘no distinction between offensive content and art’. This is not the case. Mr Lee’s proposed legislation contains a similar clause to the Miller Test, which requires the work to lack ‘serious literary, artistic, political, or scientific value’ to be regarded as obscene.