So hey, did you hear about the Michigan Republican who’s trying to ban all porn and all trans people from the internet?

At least that’s how the story goes. Local and then national media reported this week that Josh Schriver, a far-right state legislator who was stripped of his staff and funding last year for promoting the Great Replacement Theory, has introduced a bill that would impose heavy prison sentences for transmitting porn via the internet — as well as any “depiction, description, or simulation” of transgender people.

That is at least sort of true; those things are in the bill. Yet the reality is a bit more complicated. That’s right: this week at Iosphere we’re dispensing with all that bloggy opinion bullshit and doing some traditional, honest-to-god reporting.

First, the headlines.

Dear Dodds

So here’s the weird thing about Schriver’s bill, which you can read yourself here (it’s not long). Its language about trans people is indeed uncompromising:

In theory, this would cover every selfie I have ever taken since June 2021.

Missed by most coverage, however, is a very specific if confusing paragraph, which totally transforms the definition of “prohibited material”:

What does that mean? Some free speech experts I consulted initially interpreted it as referring to literally only material that was protected at the time of the First Amendment’s drafting in 1791. (FYI to non-Americans: the First Amendment is the ‘free speech’ one.)

When I asked Schriver, though, he gave a different answer:

*Not sure what’s going on here.

So okay, let’s talk about common law exceptions to the First Amendment. Specifically, let’s talk about “obscenity”, which was once defined broadly enough to include Fanny Hill and contraception pamphlets but these days depends on something called the Miller Test.

“The obscenity exception currently is incredibly narrow… almost no adult content would currently meet those standards, though faith-based groups have often advocated for widening it to enable greater restrictions on sexual speech,” Mike Stabile of the Free Speech Coalition, a pugnacious sex industry lobby group, told me. “The legislator is either misinformed or misleading.”

On its face, then, Schriver is saying his bill only covers material that meets the Miller test (or is incitement, or a death threat, or whatever). But if so, that radically reduces its scope — and seemingly renders the whole trans section pointless.

After all, what “depiction, description, or simulation” of trans people would fall into the obscenity exception without already being pornographic? “Ban all porn (except legal porn)” doesn’t seem like much of a proposal.

Perhaps it’s just a badly crafted bill. (Did I mention Schriver was stripped of his staffers last year?) “If you’re confused by this attempted porn ban, you’re in good company,” First Amendment specialist lawyer Larry Walters told me.

Kenneth Upton, senior counsel and First Amendment strategist for the LGBT+ rights group Lambda Legal, likewise said: “I would never have assumed that was [Schriver’s] intent from the language of the bill. I personally believe the language is too obscure for the average person to understand and follow it.”

Both agreed that it was blatantly unconstitutional and was never going to fly in court.

Yet Walters did offer a potential answer for why this bill even exists. “It is clear that the bill is intended to create a ‘chilling effect’ on the distribution of sexual content, along with any apparent material depicting transsexuals — whether sexual or not,” he said.

“Commercial entities faced with such devastating consequences will likely err on the side of self-censorship rather than risk decades of imprisonment… [it] renders a vast amount of protected communications in a legal limbo zone.”

In other words, even if courts are likely to vindicate them later, how much risk would an internet provider or a social network really want to take?

Upton also suggested that this could be an attempt to create a test case for the now conservative-dominated Supreme Court, in the hope that it would ultimately overturn the Miller Test and widen the definition of obscenity. As we saw with the death of Roe v Wade, previously inert laws can still have a huge impact if they’re still on the books when they’re suddenly ruled constitutional.

Of course this bill is almost certainly going to fail. Michigan Democrats control the governor’s office and the upper house. Still, I do think it’s yet another alarming sign of the GOP’s direction of travel.

“The bill is unique in its explicit pairing of online pornography and gender expression. The most similar bills I’ve seen are those focused on minors and online ‘obscene content’… but this Michigan bill is far more sweeping and explicit,” Andrew Bales of the Trans Legislation Tracker told me.

Indeed, I’m pretty sure this is the first ever U.S. bill to use such wildly expansive language basically all online depictions of trans people. And it dovetails perfectly with Project 2025’s recommendation of criminalising pornography — while defining “transgender ideology” as inherently pornographic.

All told, I think there’s little reason (as yet) for trans people and their allies to be worried about this specific bill. What it represents is another matter.

Sketch of the week

Thanks for reading! As always, you can find me on Bluesky here, on X here, and read my recent stories for The Independent here.