Oklahoma Bill Seeks To Criminalize Sexting Outside Of Marriage

Authored by Jonathan Turley,

It appears that Anthony Comstock is having something of a revival in Oklahoma. The founder of the New York Society for the Suppression of Vice fought to criminalize the mailing of any obscene work, a broadly define category that included protected political speech. Now, a  bill not only contains an expansive definition of lewd material but would criminalize even the viewing “obscene materials” by unmarried individuals.

Oklahoma Senate Bill 1976 would also make posing or exhibiting such images illegal. The law would define unlawful depictions as including “lewd exhibition of the uncovered genitals, buttocks, or, if such person is female, the breast, for the purpose of sexual stimulation of the viewer”; any depiction of “physical restraint such as binding or fettering in the context of sexual conduct”; and the undefined category “sadomasochistic abuse.”

The range of that definition would cover not just porn but personal images sent between consenting adults. However, it is expressly not meant to “prevent spouses from sending images of a sexual nature to each other.” So what about consenting unmarried adults? They have a right to intimacy, privacy, and expression.

Moreover,  it would be a crime to “buy, procure, view, or possess” any “obscene materials.” Thus, you could receive a lewd image from your lover and be criminally charged for viewing it?

In a 2002 ruling, the U.S. Supreme Court ruled against a provision of federal law that banned computer simulations and virtual pornography under the first amendment. In Ashcroft v. The Free Speech Coalition, Justice Kennedy in a 6-3 decision found that the Child Pornography Prevention Act of 1996 was “overbroad” and swept within its prohibitions many valuable and artistic works.

“Pictures of what appear to be a 17-year-old engaging in sexually explicit activity do not in every case contravene community standards . . . The (Act) also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature for centuries.”

The bill is presumptively unconstitutional in my view, but the Court made an unholy mess of this area in its rulings on obscenity. That lunacy was summed up in the ridiculous statement of Supreme Court Justice Potter Stewart in the case of Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define [it] … But I know it when I see it.”

As written, this bill is too vague and too broad to pass constitutional muster under existing precedent.