The First Amendment is under renewed pressure as Congress considers the Interstate Obscenity Definition Act, a bill that could drastically reshape the legal definition of obscenity and threaten free expression — especially for creators, publishers, and distributors of adult content online.

If passed, this law would eliminate decades of constitutional precedent and introduce a national standard for what is considered “obscene” content, disregarding the current Miller Test used by courts across the United States.

🔍 What Is the Current Legal Definition of Obscenity?

Under the Supreme Court’s Miller v. California decision, obscenity is defined using a three-pronged test:

1. Whether the average person, applying contemporary community standards, would find that the work appeals to the prurient interest;
2. Whether the work depicts or describes sexual conduct in a patently offensive way;
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This framework has allowed local communities to determine what’s offensive or acceptable based on their own values — a core protection under the First Amendment.

🚨 What Would the Interstate Obscenity Definition Act Change?

The new bill proposes replacing community standards with a national obscenity standard, effectively erasing regional differences in how adult content is judged. It also expands the criteria for obscenity to include:

“Depicting or describing any actual or simulated sexual act… with the intent to arouse, titillate, or gratify sexual desires.”

This would give federal prosecutors broader power to criminalize adult content — including material that may be entirely legal under current standards.

⚖️ Why This Threatens Free Speech and Due Process

Unlike the Miller Test, which requires prosecutors to prove that content violates the standards of a specific community, the proposed law would nationalize morality, allowing the government — not the people — to decide what is offensive.

Additional concerns include:

• Removal of intent requirements for communications: Content could be prosecuted as obscene even without any intent to harass or threaten.
• Criminalization of private adult communication via phone or internet.
• No opportunity for defense based on local norms, such as what’s sold in nearby bookstores or viewed by local internet users.

These changes would create a chilling effect on speech, with citizens and content creators self-censoring out of fear of federal prosecution.

🧠 What Courts Have Said – And Why That Matters

The Supreme Court has consistently held the line on free speech protections. It has declined to expand the list of unprotected speech beyond the current obscenity definition. Any attempt by Congress to override this precedent could face constitutional challenges.

However, as we’ve seen with FOSTA/SESTA, Section 2257, and online age verification laws, unconstitutional statutes often remain in effect for years while courts sort them out — doing long-term damage in the meantime.

🔒 What This Means for the Adult Industry and Content Creators

If this Act becomes law, those involved in the adult entertainment industry, including website operators, producers, and even users of adult platforms, could be targeted under vague and overbroad definitions of obscenity. The consequences could include:

• Federal criminal charges
• Content takedowns
• Platform liability
• Loss of free speech protections

🛑 How to Respond

This legislation must be vigorously opposed by legal professionals, civil liberties organizations, and citizens who value freedom of expression. While the bill has not yet gained significant traction, it represents a dangerous shift toward government-controlled morality and federal speech regulation.

⚖️ Consult a First Amendment Attorney

If you’re concerned about how this proposed law could affect your business or online content, speak with an experienced First Amendment lawyer. Legal guidance is critical as laws evolve and enforcement becomes more aggressive.

Author: Lawrence G. Walters, Esq.
Founder, Walters Law Group
Over 35 years defending constitutional rights and adult speech
Follow: @walterslawgroup

This article is for informational purposes only and does not constitute legal advice.