N.C. Bill Would Increase Penalty for Obscenity; Are Drag Shows a Target?

Netwon’s bill is nothing if not brief. S579 would amend existing state code §14-190.1(g) to read that “Except as otherwise provided in this subsection, a violation of this section is a Class I felony. A violation of this section committed knowingly in the presence of an individual under 18 years of age is a Class H felony.” The bill’s only other text sets its effective date to December 1, 2023.

During a committee session on the bill, Newton was asked whether the bill had anything to do with drag shows. In response, Newton said that “obscene drag shows in front of children certainly might qualify”, but allowed for the fact that other, non-obscene shows are protected under the First Amendment.

“We have a problem in our society with obscenity and pornography and lewd behavior in front of others,” Newton said in subsequent comments. “And I don’t think we should lose sight of that.”

The definition of obscenity in North Carolina law, which is found under §14-190.1(b), largely tracks the definition established by the three-prong “Miller Test”. Just as in the Miller Test, for material to be deemed obscene under North Carolina law, it must depict or describe “in a patently offensive way sexual conduct specifically defined” elsewhere in the statute; must be material that the “average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex”; the material must lack “serious literary, artistic, political, or scientific value” and the material “as used” must not be “protected or privileged under the Constitution of the United States or the Constitution of North Carolina.”

The State’s definition of “sexual conduct” has some interesting specificities to it. It covers “(v)aginal, anal, or oral intercourse, whether actual or simulated, normal or perverted… (m)asturbation, excretory functions, or lewd exhibition of uncovered genitals… or (a)n act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.”

§14-190.1(d) states that obscenity “shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences.”

Newton’s bill doesn’t amend or expand the definition of obscenity, just changes the level of felony specified in §14-190.1(g) from a Class I to a Class H. Under North Carolina law, Class I felonies carry a sentence of 3-12 months, while those who commit Class H felonies face 4 to 25 months, each with a wide variety of potential aggravating and mitigating factors.

Sen. Lisa Grafstein, a Democrat from Wake County who unsuccessfully introduced a proposed amendment to Newton’s bill that would have exposed commercial entities to civil liability if they distribute material harmful to minors without confirming the recipient is at least 18 years of age, said that she is satisfied that S579 would neither expand the definition of obscenity, or target specific types of entertainment. She also suggested that there was a need to go further than Newton’s bill envisions.

“Certainly, ensuring that there are criminal penalties is important,” Grafstein said. “But we also have the technology to do more.”

Grafstein added that her proposed amendment would have addressed “the access to pornography and to other improper materials on the internet at the source.”

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