The adult nightclub industry’s right to exist hangs on a thread — a thread provided by the First Amendment’s right to “free expression.” But “obscenity” is not protected by the First Amendment, and two Republican senators are attempting to redefine that word in such that would potentially eliminate many forms of “adult” entertainment.
(NOTE: This story was written by Angelina Spencer-Crisp and appears in the July 2025 issue of ED Magazine.)
A renewed legislative battle is brewing in Washington, D.C., and if passed, it would have far-reaching implications for freedom of expression and artistic creation within a bevy of industries.
In May of this year, Senator Mike Lee (R-UT) and Representative Mary Miller (R-IL) reintroduced the Interstate Obscenity Definition Act (IODA) — Lee’s third attempt at pushing the agenda of his political backers with controversial congressional legislation.
“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,” Lee wrote. “Our bill updates the legal definition of obscenity for the internet age so this content can be taken down and its peddlers prosecuted.”
What Is the IODA?
First introduced in 2021 and revisited again in 2023, the 2025 version of the IODA seeks to redefine how obscenity is interpreted and prosecuted in U.S. It amends the Communications Act of 1934 and effectively overrides the Supreme Court’s “Miller Test”, a long-standing precedent. Obscenity is already unprotected speech under the First Amendment, but its current definition, supporters say, makes it difficult to fully assess and prosecute.
The current legal definition was taken from a Supreme Court case argued decades ago (Miller v. California 413 U.S. 15 (1973)). Supporters of the IODA claim that the Miller standards are subjective and vague, making it difficult to apply with certainty to any given material that might be obscene. Using a pre-internet standard for modern times, they argue, presents serious challenges – particularly when states use differing definitions for “obscenity”.
Within the Communications Act of 1934, obscenity is defined as such: “Taken as a whole, appeals to the prurient interest in nudity, sex, or excretion, 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 taken as a whole, lacks serious literary, artistic, political, or scientific value.”
The Interstate Obscenity Definition Act (IODA) proposes to strengthen the existing prohibition on obscene material within the Communications Act (47 U.S.C. 223(a)) by eliminating the current requirement that such content must be transmitted with the specific intent to abuse, threaten, or harass someone.
IODA also establishes a sweeping national definition of obscenity, broadly categorizing any material that “depicts or describes actual or simulated sexual acts with the objective intent to arouse, titillate, or gratify the sexual desires of a person” as obscene.
This new definition represents a significant shift from the established legal precedent under the Supreme Court’s Miller Test, which requires content to be “patently offensive” and devoid of “serious literary, artistic, political, or scientific value” to be considered obscene.
By eliminating both the “patently offensive” clause and the requirement to prove intent to offend, the bill makes prosecution for obscenity overwhelmingly easier. This would likely result in far-reaching implications for content creators, media distributors, artists, exotic dancers, internet providers, movie makers, club owners, adult toy stores, erotic clothing, and other forms of legally protected expressive entertainment.
Pros and cons for adult entertainment
As expected, the legislation raises divided opinions on what constitutes obscenity — and its implications for legally operating adult clubs.
Supporters of the IODA argue that the legislation offers a much-needed standardized framework to address the nation’s inconsistent treatment of sexually explicit content. Others say it opens doors to define live entertainment venues as obscene, especially if someone, such as a rogue sheriff or ultra-religious community member thinks or believes the expression of exotic dancing is obscene.
By establishing a uniform federal definition of obscenity, proponents believe this bill eliminates a patchwork of varying state-level interpretations and provides predictable federal enforcement across jurisdictions.
Anti-adult entertainment factions frame the bill as a moral and cultural imperative — one aimed at protecting children, reinforcing traditional family values, and pushing back against what they describe as the increasing normalization of hyper-sexualized media in American society.
Notably, the legislation takes at least some of its language from the Heritage Foundation’s Project 2025, who’s drafters hope to realize an American form of government run under their interpretations of Christian biblical principles.
Liberty crusaders and lawyers fear that while the legislation might successfully criminalize explicit adult films, mainstream movies, educational material, and other forms of consensual adult content, entertainment or expression will be caught up in a zealot-based frenzy. By dismantling key protections enshrined in the Supreme Court’s Miller Test, the legislation, if passed, certainly appears to open the door to widespread censorship and First Amendment rights violations.
Advisory attorneys also warn that the bill poses a direct threat to the adult club sector, where advertising, performances and content could suddenly fall under greater legal scrutiny. Nightclubs, dancers, and venue owners could face prosecution, fines, or job losses — even if found not guilty.
The broader economic impact could be significant as well: the adult entertainment industry generates billions annually and supports local economies through tourism, jobs, supporting local and national charities, providing hospitality, and adding to robust nightlife scenes. A sudden legal shift, lawyers caution, might further destabilize the industry and trigger a cascade of negative legal and financial consequences.
Probability for passage
To advance this year, the IODA must pass both houses by November 2025. As of this writing, the bill has not gained substantial bipartisan support. It also faces opposition from civil liberties organizations, First Amendment advocacy groups, industry coalitions and even some conservative groups who believe in the basic tenants of less government when it comes to consenting adults — including a few moderate and female members within the rank-and-file of the current administration.
Ultimately, the bill’s chances remain moderate, but some warn that the 2024 election cycle and the recent wave of ultra-traditional religious sentiment might dramatically increase the odds in favor of passage.
While publicly billed as a moral safeguard to protect children from internet obscenity, the IODA is a weak silk thread hanging between protecting public decency and restricting constitutionally protected expression for adults.
For the exotic dance industry and even content creators across the nation, it represents a moment of uncertainty — one where the outcome might redefine obscenity to include lawful and consensual expression that resembles a throwback to the stoning ages.
Angelina Spencer-Crisp is the Executive Director of ACE National. She can be reached at (202) 800-9109 or via email at info@acenational.com.
Here’s why changing the definition of “obscenity” should matter to YOU
by Brad Shafer
Until now, eroticism and pornography have been constitutionally protected under the First Amendment, although obscenity is not. Prior to the IODA, the legal test of obscenity was designed to ensure that only the most “hard core” entertainment can be proscribed. That is why there have been few to no obscenity prosecutions arising out of the type of entertainment that is regularly presented at gentlemen’s clubs.
The IODA is but the first step to redefine, and to significantly relax, the legal standards to prove obscenity so that mere erotic entertainment can be criminalized. This Bill, which applies to visual depictions (pictures, film, video, etc.) and not live entertainment (yet), fundamentally changes the legal test of obscenity in numerous ways. First, it completely does away with the requirement that the entertainment must be judged in accordance with the “contemporary community standards.” What standards are now to be used is simply not addressed by this Bill.
Second, it jettisons the requirement that the material must be patently offensive (a topic near and dear to my heart given the fact that I wrote the most comprehensive law review article ever published on the topic of patent offensiveness). Under current legal standards, material can be found to be obscene only if it exceeds the level of sexuality that the community would tolerate others to see. Under the IODA, visual entertainment can be found to be obscene, and therefore criminal, if it simply contains “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. . . .”
This new law, if enacted, could radically criminalize simple online advertising of gentlemen’s clubs across the United States. Think of club advertising you regularly see where entertainers are touching their breasts or buttocks through clothing. Could these be prosecuted under the new law? Possibly so.
But the IODA will only be the first shoe to drop. At a recent symposium hosted by the Federal Trade Commission, entitled How Big Tech Firms Exploit Children and Hurt Families, Joseph Kohm, Public Policy Director at the Family Policy Alliance, referred to the “elephant in the room” being the “idea that people have a First Amendment right to access pornography.” Asserting that brain scans have shown that the effect of “pornography” (until now, constitutionally protected) is as bad as heroin, he observed that the “difference is you don’t have a First Amendment right to access heroin.”
Watch for more Bills that redefine, and water down, the legal test of obscenity. These could very well apply to, and thereby criminalize, the type of innocuous dance entertainment that regularly occurs in your club. I told everyone at the last EXPO this was coming. You were warned.
