Idaho Needs New Obscenity Laws for a More Obscene World

Idaho's laws on obscenity mostly date from the early 1970s. It is time to adapt state laws to the times of internet pornography and public sexual displays.

Conservatives have flailed in reaction to incidents in Coeur d’Alene the past week. They do not know how to react to the obscenity and indecency on display at the pride event. Nor do they know what to think of the so-called rioters or the authorities that arrested them. There are important lessons for the future of conservatism in Idaho in both episodes. Today we focus on the obscenity problem.

Idaho’s obscenity laws were written in 1972, when porn videos were hard to get and when there was no internet. Playboy was in business. There was then no real gay liberation movement, nor any trans movement. Television was more wholesome. No one knew anything about internet pornography addiction or about the effects porn has on male eros and ambition.

The obscenity has changed, but Idaho’s laws have mostly stayed the same.

This is not all bad. Idaho has better obscenity laws than many states because Idaho hasn't further deregulated obscenity as many states have done.

On the other hand, Idaho’s obscenity laws do not meet today’s challenges. They make no effort to define the problems of internet pornography or problems of mass public obscenity in open spaces like city parks. Fifty years of Supreme Court interpretations on obscenity yields a bit more guidance. Idaho laws could define “contemporary community standards” and “prevailing standards” in ways that leverage the best Supreme Court standards.

Because Idaho’s laws have not kept up with the growth of an obscene culture, many conservatives flail looking for ways to stop the madness of men dressed as sexualized women dancing with children to crowds in public parks. The key is obscenity. People make silly arguments because they no longer know why public morality laws exist in the first place--and what we are up against.

All states currently have age of consent laws and laws outlawing statutory rape, which prohibit adults from engaging in sex with minors. Such laws are designed to protect the innocence of childhood. Society provides parents the space to oversee the preparation of their children for sex and marriage through age of consent laws. Parents are given space to teach sexual modesty and self-restraint to their children, in the hopes that most parents will encourage children to see sex as an important part of marriage. Sex too early detaches sex from marriage, and this will lead to a weaker marriage culture.

Age of consent laws are under attack in progressive jurisdictions like California, where advocates hope to lower the age with the ultimate aim of eliminating it. Many states oppose removing the age of consent, so advocates will settle, for now, with changing the norms that support age of consent laws. Instead of changing the age of consent laws, advocates settle for sexualizing children, for now. Pride fest events contribute to that goal.

Other laws support the age of consent concept by deterring adults from sexualizing children. It is a crime to allow people in Idaho (except librarians and teachers) from distributing indecent literature to children. Perhaps even librarians and teachers should not be able to do so legally.

Another example: Idaho law needs a broader definition of “contributing to the delinquency of a minor.” Currently, it appears, that Idaho law limits contributing to the delinquency of a minor to when someone helps a minor commit a crime or procure drugs. Anyone spreading pornography or sexualized content to children has also contributed to delinquency, but they do not seem to be according to Idaho law. New laws should cover how adults run pornography companies to attract the young into viewing internet porn. Idaho’s laws in this regard are too focused on enticement and not focused enough on exposure to things that make young people delinquent.

Idaho conservatives end up looking in all the wrong places for ways of limiting degenerate public performances. Some conservatives, for instance, think and hope that CDA Pride shows violate Idaho Code 18-1507, which makes “erotic fondling” a crime. Erotic fondling, according to statute, is “touching a person’s clothed or unclothed genitals or pubic area. . . or (if the person is a child), buttocks, breasts. . . for the purpose of real or simulated overt sexual gratification or stimulation of one (1) or more of the persons involved.” While people may have hopes that CDA pride performers violated such a law, no touching of genitals with intent to stimulate has emerged from video. If a performer masturbated while dancing in front of anyone, that is erotic fondling. Certain aspects of Christina Aguilera’s performance at the LA Pride event would be erotic fondling under Idaho Code as she stroked her exposed dildo. The closer the dancing is to Aguilera, the closer it is to crime. But this is a stretch.

Idaho has tools for district attorneys or our state attorney general to enforce laws against public indecency or obscenity. They need more and better tools, like an expanded definition of contributing to the delinquency of a minor and more limits on distributing pornography to minors, and an updated account of obscenity. Idaho needs a way of investigating and prosecuting porn companies for promoting childhood porn and porn addiction. The law is an indispensable aid for efforts to maintain public decency and a pro-marriage culture.