Tag: freedom of expression

Redefining Obscenity: Lawmakers Take Aim at More Online Content

Two Republican lawmakers are advancing a bill that could dramatically expand the federal government’s ability to criminalize certain content online.

Senator Mike Lee of Utah and Representative Mary Miller of Illinois have introduced the Interstate Obscenity Definition Act (IODA), legislation that aims to overhaul the legal definition of obscenity and give prosecutors wide authority to target more online content.

We obtained a copy of the bill for you here.

Supporters of the bill claim it is designed to protect families and children from harmful material, but civil liberties advocates warn that its sweeping language threatens to criminalize large swaths of constitutionally protected expression.

IODA discards key elements of the Supreme Court’s long-standing Miller test, which has served as the nation’s benchmark for identifying obscene content since 1973. Under that framework, courts assess whether material appeals to prurient interest, depicts sexual conduct in a “patently offensive” way by community standards, and lacks “serious literary, artistic, political, or scientific value.”

Lee and Miller’s bill replaces that careful balancing test with a rigid federal definition. According to the proposed language, content is considered obscene if “taken as a whole, [it] appeals to the prurient interest in nudity, sex, or excretion,” if it “depicts, describes or represents actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person,” and if it “taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Promoting the bill, Lee declared, “Obscenity isn’t protected by the First Amendment, but hazy and unenforceable legal definitions have allowed extreme pornography to saturate American society and reach countless children.” He added, “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”

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GOP Senator Introduces Bill to Make All Porn a Federal Crime, Following Project 2025 Playbook

Last year, the rightwing think-tank the Heritage Foundation launched Project 2025, which laid out much of the policy blueprint for the current Trump administration. One of the project’s espoused goals was to permanently criminalize all pornography. Now, a Republican senator with kind words for Trump has introduced a bill that would do just that.

Senator Mike Lee (R-Utah) recently introduced the Interstate Obscenity Definition Act (IODA), which would effectively criminalize all pornography nationwide by legally redefining what it means to be obscene. For years, “obscenity” has been all but a defunct legal category that narrowly defines speech that remains unprotected by the First Amendment. Lee would explode this legal category, expanding it to encompass virtually all visual representations of sex.

According to the bill text, “a picture, image, graphic image file, film, videotape, or other visual depiction” of any media that “appeals to the prurient interest in nudity, sex, or excretion” would be considered criminal. In other words, if you have an old VHS tape of some Cinemax-style smut stashed away in your garage, you could, under this law, be considered to be harboring deeply illicit materials. Some critics have suggested that Lee’s definition of obscenity is so ridiculously broad that it could effectively criminalize Game of Thrones. That said, the punishments for merely possessing porn under the proposed law seem unclear at this point, as the legislation seems more focused on punishing the creators and distributors of racy material.

The law would “pave the way for the prosecution of obscene content disseminated across state lines or from foreign countries and open the door to federal restrictions or bans regarding online porn,” The Daily Caller writes.

“Obscenity isn’t protected by the First Amendment, but hazy and unenforceable legal definitions have allowed extreme pornography to saturate American society and reach countless children,” said Lee, in a press release about the bill. “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”

Lee’s view of pornography hews closely to that of the Heritage Foundation, which has similarly sought to crush the smut industry. In its Mandate for Leadership, Project 2025 defines pornography as the “omnipresent propagation of transgender ideology and sexualization of children” and argues that the “people who produce and distribute it should be imprisoned” and that “telecommunications and technology firms that facilitate its spread should be shuttered.”

It should be noted that porn has always been a hot-button issue and that critics have long tried to criminalize it. The history of the anti-pornography movement in the U.S. is a long and complicated one, littered with differing ideological justifications and strange bedfellows. In recent years, however, the anti-porn crusade has largely been led by the MAGA right.

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Missouri 13-Year-Old Suspended for Making a Rifle Out of Dr. Pepper Cans

A 13-year-old Missouri middle school student was suspended for sharing a photo of his weekend art project on his private Snapchat account. The student, W.G., and his mother Riley Grunden are now suing the school district, principal, and superintendent for violating W.G.’s constitutionally protected First Amendment right to creative expression and for labeling him a “cyberbully” on his permanent record. 

While at home after school on September 14, 2024, W.G. took a photo on his personal electronic device of Dr. Pepper cans assembled into the shape of a rifle to mimic a social media trend of “can art,” according to the lawsuit filed by Goldwater Institute’s American Freedom Network. He then posted the photo on his personal Snapchat story to share with his friends. The post was accompanied by a trending audio file, titled “Ak47,” which includes a voiceover saying, “This is the famous AK47, with over 50 million manufactured in ten countries, the AK47 is the most popular assault rifle in the world.” 

The following day, W.G.’s mother received a phone call from W.G.’s school principal, who informed her that another parent had reported the Snapchat post and that W.G. would be subject to a search before entering the school premises the next day. The day after the search, Grunden met with the principal, superintendent, and school resource officer, where she and W.G. were told that, even though the superintendent had found “no credible evidence of any danger,” the Snapchat post had “brought fear to other students” and could be interpreted as a “terrorist threat.” As a result, W.G. would receive three days of out-of-school suspension for cyberbullying. Before this incident, W.G. had no history of bullying or cyberbullying. Now, Grunden is suing on behalf of her son’s free expression rights. 

Although adolescent social media and internet use is one of today’s hot topics, the Supreme Court has made it clear that schools do not have the right to punish students for constitutionally protected speech that has no connection to school safety. 

The Court’s 2021 Mahanoy Area School District v. B.L. opinion reiterated schools’ limited ability to regulate off-campus speech only when speech materially disrupts the educational environment, and hedged against the temptation to censor all off-campus speech. Rather, the Court warned that “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.” Additionally, in the 2023 Counterman v. Colorado opinion, the Court established that speech could only be punished as a “true threat” if the speaker anticipated that the expression would be perceived as threatening. 

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Springfield Illinois City Council Bans Trump Shirt

The American Center for Law and Justice (ACLJ) was founded in 1990 with the mandate to protect religious and constitutional freedoms.

Under the leadership of Chief Counsel Jay Sekulow, the organization engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation that includes representing clients before the Supreme Court of the United States and international tribunals around the globe.

ACLJ has taken on the case of Ms. Rosanna Pulido, a resident of Springfield, Illinois, who “faced outrageous restrictions on her freedom of expression at a city council meeting.”

According to ACLJ, Ms. Pulido attended a Springfield City Council meeting on October 29, 2024, sporting a “Chicanos for Trump” T-shirt.

Despite her peaceful and orderly participation, exercising her free speech was too much for the council, and she was singled out by a Springfield alderwoman, who claimed the shirt violated a policy against “campaign materials” in the council chambers.

She was then forced to either turn her shirt inside out or cover the message.

As ACLJ notes, this rule is nowhere to be found in writing and, although Ms. Pulido wrote to the city council and to the city’s attorney asking what law was being enforced, she received no reply.

Further, the rule is completely unconstitutional: Citizens can wear campaign T-shirts in public places.

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United States Activates TikTok Ban Starting Sunday

The US government has confirmed that the TikTok ban will take effect this Sunday as part of a measure to protect national security from alleged espionage risks posed by ByteDance, the app’s Chinese parent company.

App stores will be required to remove the app, preventing new downloads within the country. Existing users may continue using it temporarily, but additional restrictions could be imposed soon. According to the Department of Commerce, the decision is necessary to safeguard the data of US citizens from unauthorized access by the Chinese government.

Social media platforms are buzzing with reactions. Influencers and content creators are lamenting economic losses and the limitation of their reach on a platform that has revolutionized the digital industry. Many are already migrating to alternatives like Instagram Reels and YouTube Shorts to maintain their market presence.

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Colorado Agrees to Settlement in First Amendment Case Where Designer Was Coerced into Same-Sex Wedding Website Design

Colorado’s government has consented to a settlement requiring it to disburse more than $1.5 million in attorney fees to Lorie Smith, a graphic designer who won in a First Amendment challenge against the state’s anti-discrimination law.

This legal resolution, announced on Tuesday, follows a definitive Supreme Court verdict that Colorado’s attempt to coerce Smith into designing wedding websites for same-sex couples violated her free speech rights, in conflict with her religious beliefs.

We obtained a copy of the final judgement for you here.

The case, known as 303 Creative LLC v. Elenis, which we first covered back in 2022, was decisively settled earlier this year when a federal district court ruled that Colorado must stop mandating Smith to engage in speech that contradicts her convictions. “After enduring Colorado’s censorship for nearly seven years, I’m incredibly grateful for the work of my attorneys at Alliance Defending Freedom to bring my case to victory,” Smith stated, in a press release sent to Reclaim The Net, appreciating the efforts of her legal team. She added, “As the Supreme Court said, I’m free to create art consistent with my beliefs without fear of Colorado punishing me anymore.”

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Buffalo Bills Security Sparks Outrage, Tells Fan He Can’t Wear Trump T-Shirt at Game

A Buffalo Bills fan was confronted by security personnel at Highmark Stadium on Sunday before the team’s matchup against the Miami Dolphins.

The fan, proudly sporting a navy “Trump 2024” shirt emblazoned with the slogan “Keep America First!” was informed that he could not wear the shirt due to NFL policy prohibiting political attire.

Erie County GOP quickly took to X, expressing outrage over the incident.

“WIDE LEFT! Buffalo Bills security telling a fan he can’t wear a Trump T-shirt at the game? What a joke! If anyone knows this proud Trump supporter, send us a message – we’d love to hook him up with some Trump gear!”

Despite the fan’s insistence that he was exercising his rights in a free country, security personnel remained firm in his stance.

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Montana’s Porn Age Verification Law Is Headed to Court

It seems that a puritanical wave is sweeping the country as state governments increasingly try to make it more difficult to access pornography from within their borders. A lawsuit is challenging one of those laws, and this week, a federal judge allowed it to continue.

Montana is one of multiple states in recent years to pass a law requiring pornographic websites to verify users’ ages. Under Senate Bill 544, any website that “knowingly and intentionally publishes or distributes material harmful to minors” must “perform reasonable age verification methods to verify the age of individuals attempting to access the material,” so long as the site in question “contains a substantial portion of the material.”

The statute defines “material harmful to minors” as, essentially, the depiction of any sexual acts, covering everything from straightforward pornography all the way up to and including “bestiality.” It further notes that “reasonable age verification methods” can take the form of “a digitized identification card” or some other system that either checks a user’s “government-issued identification” or otherwise “relies on public or private transactional data.”

While perhaps well-intended, the law is a civil liberties nightmare: First of all, as a general rule, pornography is free speech protected by the First Amendment. And as Elizabeth Nolan Brown wrote in the April 2024 issue of Reason, the sort of age verification law that some states now favor “creates a record, permanently attaching real identities to online activity that many people would prefer stay private,” and “even the best verification methods would leave people vulnerable to hackers and snoops.”

The law also stipulates that it applies when the material in question constitutes “more than 33 1/3% of total material on a website,” meaning a site could be forced to enact an onerous age-verification scheme even if well over half of its hosted content does not meet the state’s definition of disallowed material. One imagines that porn sites could simply load up their servers with enough inoffensive content to stay on the right side of that ratio, but instead, sites like Pornhub have simply blocked access in Montana, as they have in many other states that have passed these laws.

In May 2024, a group of organizations and individuals led by the Free Speech Coalition filed a federal lawsuit seeking an injunction against the enforcement of the law. Per the lawsuit, S.B. 544 “operates as a presumptively-unconstitutional prior restraint on speech” since it requires “the use of some particularized approval method as a condition to providing protected expression.”

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Freedom of Expression Under Attack Amid Israel’s Genocide in Gaza: UN Official

A newly released UN report raises the alarm about the risks of freedom of expression around the world as Israel carries out its effort to ethnically cleanse Gaza.

The report should come as no surprise to subscribers to The Trends Journal.

We have been reporting on the crackdown in the U.S. on college protesters and anyone who speaks out against the atrocities playing out in Gaza. There is only one position accepted in Washington and in the mainstream news, which could be summed up in the phrase: Israel has the right to defend itself.

But Israel’s rights have trumped individual freedoms across the world, Irene Khan, the UN’s special rapporteur on the promotion and protection of the right to freedom of opinion and expression, said in the report, which was, predictably, largely ignored in the media.

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Colorado’s Supreme Court dismisses suit against baker who wouldn’t make cake for transgender woman

Colorado’s Supreme Court on Tuesday dismissed on procedural grounds a lawsuit against a Christian baker who refused to bake a cake for a transgender woman. Justices declined to weigh in on the free speech issues that brought the case national attention.

Baker Jack Phillips was sued by attorney Autumn Scardina in 2017 after his Denver-area bakery refused to make a pink cake with blue frosting to celebrate her gender transition.

Justices said in the 6-3 majority opinion that Scardina had not exhausted her options to seek redress through another court before filing her lawsuit.

“We express no view on the merits of these claims,” Justice Melissa Hart wrote for the majority.

Phillips’ attorney, Jake Warner with the Arizona-based firm Alliance for Defending Freedom, had argued before the high court that the baker’s actions were protected free speech and that whatever Scardina said she was going to do with the cake mattered for his rights.

Warner said Tuesday that his client had been pursued and mocked for years by those who disagreed with him.

“Enough is enough,“ Warner said. ”Jack has been dragged through courts for over a decade. It’s time to leave him alone.”

Scardina’s attorney, John McHugh, expressed disappointment and said he was evaluating if there were any remaining legal options.

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