A Republican senator in Oklahoma is attempting to rewrite 51 year old obscenity standards as part of a newly introduced bill.
Introduced by State Senator Rob Standridge, SB199 amends the Miller Test, a three-pronged standard for judges and juries that was established in 1973 as a way to determine what legally qualifies as “obscene” and what doesn’t.
Prior to Miller v California, the legal standard for obscene material that fell outside of First Amendment protection was material that could be considered "utterly without redeeming social value." (That case, Jacobellis v. Ohio in 1964, was where a judge said the now-ubiquitous phrase "I can't define pornography, but I know it when I see it.") The Miller test defines obscenity as:
- Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
- Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
- Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In this new bill, Standridge defines obscenity as:
- depictions or descriptions of sexual conduct which are patently offensive as found by the average person applying contemporary community standards,
- taken as a whole, have as the dominant theme an appeal to prurient interest in sex, or in minors create a prurient interest in sex, as found by the average person applying contemporary community standards, and
- a reasonable person would find the material or performance taken as a whole lacks serious literary, artistic, educational, political, or scientific purposes or value; provided, however, such standard shall not apply when an adult knowingly provides material that qualifies as obscene to a minor without written informed consent by the minor’s parent or guardian.
In this latest obscenity bill, Standridge’s additions to the third point—that the standard of lacking serious artistic or scientific value “shall not apply when an adult knowingly provides material that qualifies as obscene to a minor without written informed consent by the minor’s parent or guardian”—is so badly written it’s almost nonsense.
David Greene, senior staff attorney at the Electronic Frontier Foundation, told me it creates a tautology: “It purports that that constitutional requirement will not apply to material that ‘qualifies as obscene to a minor’ even though the lack of serious value is what helps define what is in fact ‘obscene to a minor,’” he said. “It is hard to say what impact this nonsensical clause will have. But given the current political climate it could well be intended to be used to target educators, librarians, counselors, and others seeking to provide sex education materials to students.”
Greene also said that the revisions proposed by Stanbridge’s bill would be unconstitutional—and, if passed, would make it even harder for young people to access information about sexuality and sexual health.
“The law primarily seeks to re-write the accepted constitutional understanding of material that is ‘harmful to minors,’ access to which by minors may be legally restricted. The bill thus shifts the focus of the materials’ ‘interest’ to the interests of the minor,” Greene said. “The idea that materials may not themselves appeal to a prurient interest in sex, as is constitutionally required, but may instead ‘create’ in minors a ‘prurient interest in sex,’ may be designed to address sexual health materials, LGBTQI+ content, contraceptive information, or similar information that the legislators believe will contribute to a minor’s ‘prurient interest in sex.’ All of that would be both constitutionally concerning as well as a broadside of minors’ rights to receive non-obscene information.”
In the last few years, conservative lobbying groups and legislators have attacked library and school collections of materials about race, gender, and sexuality, with record numbers of books about those topics in particular taken off shelves and banned from discussion in schools. Last year, in Oklahoma, a school district removed thousands of graphic novels from library shelves after a parent complained that his teen was reading one that depicted a teenager’s experience of questioning Christianity.
Standridge’s past bills include one that banned COVID-19 vaccine and mask mandates in schools (which passed in 2021), another (failed) book ban bill that restricted books about sexuality and gender and awarded parents a $10,000 bounty for every day that a book they challenged was not taken off the shelves, a bill in 2022 that would have required homeless people to obtain permits for their camps, and one that would allow students to sue their teachers for $10,000 if they taught anything that went counter to their own religious beliefs.
