I Know It When I See It

Republicans Are Coming for Your Porn

Anthony Comstock has been reborn. His name is Mike Lee. He’s a Republican Senator from Utah, and he’s coming for your porn. Based on his voting record and social media presence, Lee is big on guns and conspiracy theories (he suggested Jan. 6^th was faked by government operatives) but doesn’t much care for women or health care.

He’s being joined by Rep. Mary Miller, a Republican from Illinois who is leading the charge against the trans community. She tried to get Amazon to stop selling a transgender-themed children’s book and intentionally misgendered trans Rep. Sarah McBride likely as part of the campaign to control where the new Congresswoman from Delaware could pee. Further proof that Miller is a real gem: when Roe was overturned in 2022, she called it a “historic victory for white life.”

The two have come together (purely platonically, of course, because sex is ick) to rid the world of porn, and with it half of all books, magazines, TV shows, and all movies rated PG-13 and above.

Their bill is called the Interstate Obscenity Definition Act (IODA), and as promised it rewrites the legal definition of obscenity. This bit of semantics is particularly important because the Supreme Court has long established that obscenity is not protected by the First Amendment. However, it has also established that obscenity laws cannot cast too broad a net. Most states have obscenity laws, but SCOTUS says those laws have to be limited in order to be constitutional.

Defining obscenity is particularly hard (pun barely intended) because our personal thresholds for sexual content differ widely. Moreover, society’s generally accepted threshold for what is appropriate or inappropriate sexual content is constantly in flux. In 1997, a quick lesbian kiss between Ellen DeGeneres and Lauren Dern on a sitcom caused outrage in many corners of this country. Today full-on (simulated) gay sex scenes are commonplace on network shows like Grey’s Anatomy.

The difficulty in setting a standard was famously summed up by Justice Potter Stewart (a perfect name for a Justice by the way, second only to Thurgood Marshall in my opinion). The court was asked to determine if Louis Malle’s film, The Lovers, violated obscenity laws. He responded:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

In the 1973 case Miller v. California, the Supreme Court turned “I know it when I see it” into a three-pronged test that’s still used today. The first question is whether an average person using contemporary community standards would find that the work appeals to prurient interests. The second is whether the work is “patently offensive” in the way it describes sexual conduct. And the last is whether the work lacks literary, artistic, political, or scientific value. The goal was clearly to cast a net small enough that going after stepparent-porn wouldn’t also catch Lolita.

In truth though, under the Miller test most stepparent porn would be fine considering that the step-incest porn category is so popular it clearly doesn’t go against contemporary community standards. A slightly confusing stat says that as of January 2024, among the top 100 videos on Pornhub those that dealt with step/parent/siblings had 4.1 billion views compared with 3.1 billion views for all other subgenres combined.

Lee and Miller don’t like that. They want a standard that would rid the world of MILF stepmoms and much, much more. Their definition reads as follows:

The term ‘obscene’ or ‘obscenity’, when used in a manner or context that explicitly refers to, or could apply to, a picture, image, graphic image file, film, videotape, or other visual depiction, includes a picture, image, graphic image file, film, videotape, or other visual depiction 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.

The changes may seem subtle, but they’re substantial.

First, they’ve taken away community standards. It’s not about whether a reasonable person would find this obscene. That leaves a huge void as to who might be the arbiter of what we can and cannot watch or read. Is it Mike Lee himself? Mary Miller? Elon Musk? Donald Trump? Is it the Heritage Foundation, Citizens for Decency, or Fight the New Drug? Is it me? Please let it be me. (Actually, no, I take that back. There’s a lot of porn out there that I want people to have unfettered access to but never want to see with my own eyes.)

Next, they took out the idea that a work had to be “patently offensive” in its description or portrayal of sex. Read that second point closely. Basically, any depiction of any sex act designed to turn us on is covered. It doesn’t even have to be perverted (whatever that might be to Mike Lee). It just has to be, well, sex. I’m pretty sure this eliminates half the Netflix library, all hospital shows other than The Pitt (since Grey’s medical shows are 40% surgery and 60% sex), and every teen show made for the CW (those 27-years-olds playing teenagers are too damn hot to keep their clothes on). It also eliminates all spicy books currently promoted on TikTok, purges OnlyFans, and likely does some serious damage to sex education. The book banning of the last few years is nothing compared to this.

In addition, the word serious has been added to the third prong. It seems like a small change, but trying to argue that the “Stepmom Gets Soaked” or “Big Titty Mamas 4” have serious artistic value might, in fact, be more difficult. At the very least it’s far more subjective.

(I thought they’d also added excretory functions and was going to joke that maybe Lee’s hatred for porn started when “Two Girls, One Cup” made the rounds, but then I realized that word was in the original Miller test. Our fascination with poop isn’t new.)

The GOP has been quietly going after porn for years. It’s official party platform calls porn a public health issue. (The next time we play Irony or Hypocrisy we might focus on all of the actual public health issues they didn’t include in that platform.) Project 2025—the playbook for our right-wing, reactionary xenophobic, homophobic, anti-education, anti-choice, pro-gun, Leave-it-to-Beaver-trip-back-to-the-fifties*—wants a comprehensive ban on porn. And many states have gotten a jump start by putting in age verification requirements because “won’t anyone think of the children” is where it always starts and rarely where it ends.

In an op-ed for MSNBC, Jacob Mchangama and Ashkhen Kazaryan of The Future of Free Speech point to our own history with Comstock laws that were used to suppress James Joyce’s Ulysses and Bernard Shaw plays along with medical text and pamphlets on birth control. They also point to a supposedly feminist anti-pornography law passed in Canada in the early 1990s. They write, “within the first two and a half years following the law’s implementation, more than half of feminist bookstores had materials confiscated or detained by customs officials. This decision also led to widespread censorship of women’s and LGBTQ literature in Canada.”

This scares me as a person who likes books, movies, television shows, and even porn, and also as a person who has spent her life trying to educate others about sexuality. Mike Lee has never heard of Sex On Wednesday, but would he want to ban it? I’m 90% sure Mary Miller would.

(Funny story. Dusty Deevers—the Oklahoma State Senator who introduced legislation in his state to ban and criminalize porn—subscribed to SOW a few months ago. He used his official statehouse email. I thought maybe he’d subscribed because he saw that I’d written about him in the past. But no, he came through Amazingnewsletters.com. He clearly didn’t know what he was getting into. He lasted exactly one issue before unsubscribing.)

Some pundits have said that taking away porn would make Trump unpopular with the very young men who elected him. I keep looking for the issue that will make his supporters realize they were duped. I thought it would be the price of eggs, but we stopped talking about that pretty quickly. It might have been tariffs and Trump’s grinchy comments about kids getting fewer dolls for Christmas, but he blinked in his game of chicken with the world economy before the full effect was felt. It should be Medicaid, but people don’t seem to be paying attention.

It would be really fun if porn turned people against him (given that paying off a porn star didn’t). I fear, however, that the anti-porn, no-fap incels who make up some of those young male Trump voters are harboring so much sexual guilt that they’ll pretend to be relieved instead of outraged. Remember how obsessed the Proud Boys are with whether fellow members masturbate?

The likelihood that Lee’s law passes is pretty slim. This is actually the third year he’s tried to ram it through (pun totally intended). It’s gone nowhere thus far. But this year is scarier. Our current administration is looking more and more like an authoritarian regime every day and seems to have little love for the First Amendment and even less respect for the Supreme Court.

Mchangama and Kazarya write:

In authoritarian regimes, vague obscenity laws are routinely used to suppress dissent, punish activists, and control access to health and educational materials.

We do not want to give them any mechanisms that makes either ridding the world of “When the Parents Are Away, The Stepsiblings Play” or silencing dissenters any easier.