Legal Commentary

While researching a recent article on the increasing penalties associated with possession of child pornography, I kept coming across references to teen sexting.  (The term ?sexting? refers to ?the act of sending sexually explicit messages or photographs electronically, primarily between mobile phones.?)  As commentors on PrawfsBlawg and elsewhere have noted, there have been a number of reports that local prosecutors are using child pornography laws ? which carry very hefty penalties ? to go after teens who are creating, receiving, or forwarding sext-messages.

In response, several legislatures have proposed (and in some cases enacted) legislation that removes sexting from the category of child pornography and provides for lesser criminal penalties.  I?ve been mulling over both the charging decisions of local prosecutors, as well as these legislative decisions, and I think that I might write about this topic over the summer.  My thoughts are still in a relatively early stage, and so I?d love to get input from fellow Prawfs readers on what I?ve come up with.  In particular, I?m interested in your thoughts about how some language from yesterday?s opinion in the Stevens animal cruelty video case may affect the constitutional status of sexting.

First, Stevens seems to suggest that teen sexting, unlike child pornography, may be protected by the First Amendment.  The opinion contains the following description of Ferber ? the case that initially held that child pornography is not protected by the First Amendment:

When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In Ferber, for example, we classified child pornography as such a category, 458

U. S.

, at 763. We noted that the State of

New York

had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis.

Id.

, at 756?757, 762. But our decision did not rest on this ?balance of competing interests? alone.

Id.

, at 764. We made clear that Ferber presented a special case: The market for child pornography was ?intrinsically related? to the underlying abuse, and was therefore ?an integral part of the production of such materials, an activity illegal throughout the Nation.?

Id.

, at 759, 761.  As we noted, ??[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.??

Id.

, at 761?762. Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

As I read this language, the Court is explaining that child pornography falls outside of First Amendment protection, not because the government interests outweighed the individual interests at stake, but rather because images of child pornography are the product of child exploitation or sexual abuse ? an argument that the Court made (at least implicitly) in Ashcroft when striking down the federal ban on virtual child pornography.  Because children cannot consent to sexual activity, all sexually explicit pictures of children are considered non-consensual, and thus any sexually explicit image of a child is necessarily a product of child sex exploitation/abuse.

In contrast to the prototypical image of child pornography ? i.e., an image taken by an adult of a child ? teen sexting is not the product of child sex exploitation or abuse.  That is because it is an image that the teen takes of him or herself, and his or her ability to consent to engage in sexually explicit conduct with an adult (even if it is just the taking of pictures) is irrelevant.  [I am, of course, leaving to one side a teen who takes such a picture of him- or herself because of pressure from peers ? the analysis in that case might be different.]  We might argue that the teen ought not have taken the picture, and if the teen is under the age of consent in his or her jurisdiction perhaps they have no affirmative right to sexual autonomy that would include taking such a picture; however, assuming no involvement by adults in the production of the image, then I simply don?t see how the image can be considered a product of child sex exploitation or abuse.  In short, I don?t see how prosecutors can charge teen sexting under child pornography laws.

Second, the Stevens opinion seems to cast some doubt on whether legislatures can outlaw sexting at all if the person who is taking the images of him- or herself is above the age of consent. Section III.B of the opinion contains the Court?s explanation about how the statute?s prohibition on depictions of animal cruelty includes many images of lawful activity.  In particular, the opinion focuses on the fact that the statute outlaws possession of an image if the activity portrayed is illegal in the state where the image is possessed, even if the activity portrayed was legal in the jurisdiction when the image was created.  Ultimately, the opinion doesn?t hold that an image is protected by the First Amendment so long as the activity portrayed was legal at the time the image was produced; however it does describe such images as ?presumptively protected by the First Amendment? and characterizes prosecutions for the possession of those images as ?presumptively impermissible applications? of the statute.

It seems to me that if a state?s age of consent law authorizes a sixteen year old to consent to sexual activity, then the ability to take sexually suggestive pictures of herself is a lesser included version of that right to sexual autonomy.  And, arguing by analog to the Stevens opinion, sexting images are ?presumptively protected by the First Amendment,? and thus ought not be subject to any criminal penalties, even if those penalties are not as severe as those associated with child pornography charges.  If I am correct about this argument by analogy to Stevens, then perhaps the federal statute defining child pornography as including images of any person under the age of 18 needs to be re-thought, since the most U.S. states set their age of consent at 16 or 17.

Now, I?m sure that there are a number of issues that I am missing with this analysis.  For example, teenagers may not have the same rights of expression or sexual autonomy as adults, age of consent laws notwithstanding, and thus their First Amendment rights to create and possess these pictures may not receive the same protection.  Or perhaps because these images are being sent via the internet or wireless networks, there may be some other hook that allows government regulation.  In any event, I find the topic really interesting and if anyone is will to share their thoughts or impressions either in the comments thread or via email, I?d really appreciate it.