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Oklahoma Anti-Pornography Bill: What It Means for Romance Writers

Oklahoma state flag featuring an Osage war shield with six crosses and seven pendant eagle feathers on a medium blue field

The Authors Guild has heard concerns from the romance writer community about a recent bill introduced in the Oklahoma legislature that seeks to dramatically expand the definition of unlawful pornography and impose harsh criminal penalties for the distribution of what it deems pornography. The fear is that the bill could include romance book covers.

The bill, SB593, was introduced in January by Rep. Dusty Deevers, seemingly as a publicity-seeking maneuver by a legislator with a history of pushing far-right legislation that has no chance of passage. And in this case, even if the bill were to advance or pass, we, along with the motion picture industry, publishers, free speech advocates, and others, would immediately jump in and ensure that a court enjoins it as a violation of the First Amendment.

Among other things, the bill would provide criminal penalties of up to ten years in prison for the production, distribution, or possession of pornography. “Pornography” is defined as “any visual depiction or individual image” of various acts, including “sexual intercourse which is normal or perverted” and “lewd exhibition of the uncovered genitals, buttocks, or, if such person is female, the breast, for the purpose of sexual stimulation of the viewer.” It further provides that such materials may not be produced or distributed within Oklahoma “if they lack serious literary, artistic, educational, political, or scientific purposes or value.”

This last part is important because it attempts to change the long-established test for obscenity established by the Supreme Court. Under the so-called Miller Test, courts are required to consider whether a work taken as a whole lacks serious value. SB593 omits the “taken as a whole” language, suggesting that, if the bill became law, prosecutors could classify something as pornographic by taking an individual image or scene out of context. This would be a clear violation of the Miller Test and suggests that the bill is mainly intended to provoke a lawsuit in hopes that the Supreme Court will eventually revisit that standard.

In any event, we don’t believe there is cause for romance writers to be concerned at this time. To begin with, the bill only applies to visual depictions, so it would not cover the text of erotic novels or similar works but only internal artwork. Based on our preliminary online searches, we believe that few, if any, romance novel covers would fall under a generous reading of the proposed text. Of course, any writer who believes that images in their work could be implicated should contact us at staff@authorsguild.org.

As noted, we have been informed that Rep. Deevers has a habit of introducing bills that have no chance of being enacted and that none of his bills have ever passed. That said, the fact that this latest bill would impose criminal penalties on constitutionally protected speech makes it important to follow, particularly in the current political environment. Members of the romance writer community should rest assured that the Guild will continue to track this and other assaults on free speech and will lend our expertise to those fighting against such attacks. Should SB593 move at all, we will be there to lobby against it and at least ensure that it excludes book covers.