What is the Interstate Obscenity Definition Act?

The Interstate Obscenity Definition Act is a proposed federal bill that seeks to establish a national definition of obscenity, replacing the current community-based Miller Test. It could expand what is considered obscene and give the federal government greater power to regulate adult content online.

How would this bill affect free speech?

The bill threatens free speech by removing local community standards and allowing the federal government to decide what content is considered obscene. This change could criminalize legal adult content and silence creators through self-censorship.

Why is replacing the Miller Test controversial?

The Miller Test allows each community to determine its own standards for obscenity, which protects diverse values across regions. Replacing it with a national standard removes this protection and risks overcriminalizing legal speech.

Who could be affected by the Interstate Obscenity Act?

Adult content creators, website operators, publishers, and even users could be affected. The act would increase legal risk for those producing or distributing adult content online, regardless of local legality.

Has the Supreme Court ruled on this type of law before?

Yes. The Supreme Court has consistently upheld free speech protections under the First Amendment and has not expanded the definition of unprotected speech beyond the current obscenity standard. New federal laws that challenge this precedent often face constitutional scrutiny.

What should I do if I’m concerned about this bill?

You should consult with a First Amendment attorney, follow updates from civil liberties organizations, and consider speaking out to your elected representatives. Legal professionals can help you understand how to protect your rights as this legislation evolves.

Can this law criminalize private communication?

Yes. The bill could potentially criminalize private adult communication via phone or internet if the content is deemed obscene under the new federal standard, even without malicious intent.

Is the bill already law?

No. As of now, the Interstate Obscenity Definition Act is a proposed bill and has not been passed into law. However, its introduction signals a shift toward broader federal regulation of online content.

Free Speech – Walters Law Group

Q: What is the current legal definition of obscenity?

Under the Supreme Court's Miller Test, obscenity is defined using three criteria: whether the content appeals to the prurient interest, whether it depicts sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value.

Congress Proposes New Obscenity Definition: What It Means for Free Speech and Adult Content Laws

Wed, 09 Jul 2025 18:10:47 +0000

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:

Whether the average person, applying contemporary community standards, would find that the work appeals to the prurient interest;
Whether the work depicts or describes sexual conduct in a patently offensive way;
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.

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Free Speech and Free Press in the Age of Disinformation

Wed, 09 Oct 2024 14:26:56 +0000

By Bobby Desmond – October 09, 2024

The Importance of First Amendment Protections

The First Amendment’s protections of religion, speech, the press, assembly, and petition are not only essential to the pursuit of happiness by each person, individually, but also to the proper functioning of a republic governed by the people as a whole.

Concerns Regarding Free Speech

Admittedly, speech can have negative consequences. The following is a non-exhaustive list of concerns commonly raised by lobbyists and legislatures when attempting to restrict speech:

The unintentional spread of false information, also known as “misinformation.”
The intentional use of false information to mislead, also known as “disinformation.”
The intentional weaponization of false information to cause harm, known as “defamation.”
The unintentional disclosure of private information, such as data leaks.
The intentional and unauthorized access of private information, such as data breaches and intrusion upon seclusion.
The intentional disclosure of private information to cause harm, such as nonconsensual dissemination of intimate images and public disclosure of private facts.
The intentional and unauthorized use of name, image, and likeness rights and intellectual property.
The use of speech that is integral to illegal activities such as extortion, conspiracy, and solicitation.
The recordation of illegal activities such as child sexual abuse materials.
The disclosure of government secrets.
The incitement of or threatening to engage in imminent violence, such as urging a mob to attack a nearby building or threatening the life of an elected official.
The intentional obstruction of government actions such as filing false elector certifications.

Government Restrictions on Free Speech

Undoubtedly, in some instances, the government may have a compelling interest to use the least restrictive means necessary to prevent the harms of certain historically unprotected areas of speech. In other instances, the government should more finely distinguish between thought, expression, and action to carve out suitable space where only specific criminal activities are prosecuted, while the mere exercise of religion and speech rights is left uninhibited. It is the government’s constitutional obligation to ensure that its means are sufficiently narrowed, its interests sufficiently compelling, and its restraints sufficiently distinguishable and clear.

Civic Responsibility in Countering Harmful Speech

As citizens of this great nation, it is our civic duty to take whatever additional measures may be necessary to further reduce the adverse influences of false information and other forms of harmful speech on our own lives rather than relying on the government to constrain protected speech that we disagree with or otherwise disfavor. It is high time that we return to the principled doctrine of counter-speech and resume curtailing misinformation, disinformation, and other harmful speech by speaking our piece rather than by passing laws that require others to hold their peace. Speech should never be compelled or confined if further discourse would expose falsehoods or otherwise remedy the harm caused by that speech.

The Spread of False Information by Traditional Media

It is no secret that false information is often included in print, online, broadcast, and cable news—whether by accident, mistake, misunderstanding, negligence, recklessness, or intention. In an ideal world, the news would be completely objective, and there would be a clear delineation between reporters, commentators, and entertainers. However, people are deeply flawed and inherently imperfect.

Defamation Law and Media Accountability

Defamation law currently provides a reliable (though not always satisfactory) check when reporting includes misinformation or disinformation. For example, defamation claims have been successfully brought in recent years against:

InfoWars host Alex Jones for his lies about the Sandy Hook shootings.
Fox News for the lies of its anchors, reporters, and pundits about the reliability of certain voting machines in the 2020 election.
CNN for its portrayal of high school student Nicholas Sandmann engaged in a March for Life rally as a racist.

Challenges with Defamation Law

Proving the elements of a defamation claim for disinformation is fairly straightforward because the false information is published with the intention to mislead. A defamation claim for misinformation is somewhat harder to prove because the false information is spread unintentionally, but the elements may still be proven by showing a lesser mens rea. Most plaintiffs must show that the speaker was at least negligent as to the falsity of the statement, but public figures must show that the speaker had actual malice—that is, knowledge of or reckless disregard for the falsity of the statement.

Exercising Free Speech Rights on Social Media

Social media is not a haven for free speech. While the First Amendment prohibits the government from restricting speech, social media platforms can freely choose what speech to solicit or ban, what posts to promote or demote, and whether to allow or deactivate comments on posts. Platforms are given free rein to determine whether certain users should be included in lists of suggested accounts, given access to the platform without special promotion, or deplatformed entirely.

Political Viewpoint and Social Media Moderation

Many prominent influencers have criticized various platforms for making discriminatory moderation decisions based on political viewpoints. Advocates of government regulations for social media platforms support plans requiring political neutrality, conspicuous disclosure of content policies, and transparent appeals processes.

The Special Case of Sexually Oriented Speech

In recent years, there has been a resurgence of legislative constraints on websites allowing users to post sexually oriented speech. Laws such as FOSTA and SESTA were intended to fight online sex trafficking but have had a chilling effect on protected speech. Platforms have preemptively banned sexually oriented speech to avoid liability, stifling free expression in the process.

Conclusion

Politics are inarguably creating a schism across the country, and our ideological differences are magnified by the traditional media we consume and the social media platforms we visit. Nonetheless, Americans agree that a thriving democracy requires freedom of thought, freedom of expression, and freedom of the press. While we celebrate our founding fathers for enshrining protections of these rights in the First Amendment, we must challenge laws that limit these rights and foster a free and fair marketplace of ideas.