Could a Kansas bill censor non-explicit, LGBTQ+ content? Lawyers, lawmakers disagree

The bill would not allow for censorship of non-explicit LGBTQ+ content, he said. Rather, the law could only be used to restrict content online if it is sexual.

“While it is unfortunate that a lot of Kansas laws have remnants of old, homophobic or transphobic language in them, this is an instance where it is not necessarily explicitly being used in a homophobic or transphobic way,” Hiegert said.

Hiegert continued: “If folks are trying to use this legislation to ban all LGBTQ content, that is very clearly not what the bill does, and that would be an unconstitutional attempt to censor access to LGBTQ content.”

A three-tiered test must be applied to determine whether some content is legally obscene. That includes determining whether the material could evoke sexual excitement, that the sexual conduct is viewed as offensive, and that it lacks serious literary, artistic, political, or scientific value.

What content is considered obscene?

Max Kautsch, a Lawrence attorney who specializes in First Amendment law, said he vehemently disagreed with Hiegert’s interpretation. Because the test to determine if content is obscene is dependent on who is reviewing it, Attorney General Kris Kobach, a Republican, would be in charge of determining what is considered obscene, he said.

Kautsch said the legislation, because it is written so vaguely, could hypothetically shut down content like gay pride newsletters.

“Because they defined sexual conduct as to include homosexuality by reference, that makes it so much more broad and sweeping and potentially dangerous than in any other age verification bills across the country,” he said. “The threat is absolutely there.”

Rep. Jason Probst, a Hutchinson Democrat, voted with Republicans to pass the legislation. The bill clearly would only restrict explicit images of homosexual couples, not affection in any other context, he said. Even if Kobach interpreted the bill to restrict LGBTQ+ expression, a court would block it, he countered.

“I don’t believe there’s a single court in Kansas that would read this bill and the homosexuality statute that would say two men holding hands or showing affection is considered pornographic,” he said. “The language of the statute is narrow enough that I don’t think that’s possible.”

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