How Sen. Mike Lee proposes to shield children from online pornography

While the U.S. Supreme Court has struck down numerous bills to prevent children from being able to access online pornography, Sen. Mike Lee believes he has a proposal that would survive First Amendment scrutiny.

In addition, the Utah Republican introduced legislation Wednesday to establish a national definition of obscenity.

Lee’s bill would direct the Federal Communications Commission to issue a rule requiring all commercial pornographic websites to adopt age verification technology to ensure children cannot access pornographic content. 

Lee said vast technological improvements give his bill, the Shielding Children’s Retinas from Egregious Exposure on the Net or SCREEN Act, good legal ground to pass the Supreme Court’s requirement that the government use the least restrictive means to accomplish its interest.

“Given the alarming rate of teenage exposure to pornography, I believe the government must act quickly to enact protections that have a real chance of surviving First Amendment scrutiny. We require age verification at brick-and-mortar shops. Why shouldn’t we require it online?” Lee said in a statement.

In the 20 years since the Supreme Court last took up the issue, blocking and filtering software has proven to be ineffective in protecting children from accessing online pornography, with nearly 80% of teenagers between the ages of 12 and 17 exposed to such content, according to Lee.

“Every day, we’re learning more about the negative psychological effects pornography has on minors,” he said.

Lee noted that 17 states have recognized pornography as a public health crisis leading to a broad range of individual, societal and public health impacts. Utah in 2016 was the first state to declare pornography a public health hazard.

The bill would directs the FCC to issue a rule to require commercial pornographic websites to adopt age verification technology to ensure that users of the website are not children. Within the rule, the agency would be required to:

• Set a “more likely than not” verification standard for pornographic websites for the purposes of determining whether the user of a pornographic website is a child or not.
• Allow pornographic websites to choose their method of age verification provided that it meets the FCC’s standards and prohibits a child from accessing pornographic content.
• Permit websites to contract with third party age verification providers.
• Establish an audit process to ensure compliance with the rule as well as ensure no identifiable user data is shared with the federal government.

The bill would also grant the FCC enforcement powers, including civil penalties and injunctive relief.

Lee’s Interstate Obscenity Definition Act would establish a national definition of obscenity that would apply to obscene content transmitted via interstate or foreign communications. 

The Supreme Court has struggled to define obscenity, and its current definition runs into serious challenges when applied to the internet, according to Lee. Obscenity is not protected under the First Amendment, and violations of federal obscenity laws are criminal offenses.  

Courts use a three-pronged test, commonly referred to as the Miller test, to determine if given material is obscene. Obscenity is defined as anything that fits the test’s criteria, which may include, visual depictions, spoken words or written text.

Specifically:

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

According to Lee, the test brings into question which contemporary community standards or what state law should be applied to determine patent offensiveness.

Lee’s bill would define obscenity as:

1. Taken as a whole, appeals to the prurient interest in nudity, sex or excretion,
2. Depicts, describes, or represents actual or simulated sexual acts with the objective intent to arouse, titillate or gratify sexual desires of a person, and
3. Taken as a whole, lacks serious literary, artistic, political or scientific value.

Lee said it would also strengthen the existing prohibition on obscenity by removing the “intent” requirement that only prohibits the transmission of obscenity to abuse, threaten or harass a person.