Legal Commentary

A commenter on my original sexting post points to a story about a 14-year-old suburban New Jersey girl arrested on child porn charges for posting nude pictures of herself on MySpace. This appears to be the first prosecution to go forward. New Jersey also is the birthplace of Megan's Law sex-offender registry requirements; Maureen Kanka--the mother of Megan--expressed outrage at this use of child-porn laws.

It is important not to fall into a moral panic or start assuming, because the news media is talking about this, that these sorts of prosecutions are more pervasive than they really are. But this is getting insane, in however limited amounts it is happening. I guess we have to wait to see how many prosecutions must fall flat on their faces before prosecutors stop doing this sort of thing.

But here is an interesting First Amendment angle: The essence of child pornography as a proscribable category of expression has been exploitation, not nudity or sexuality alone. Non-obscene sexual depictions of children made without exploiting an actual child--drawings or paintings or "virtual child porn" (adult figures morphed to look like children) or adults "playing" children--are constitutionally protected. So how should we treat a photo of an actual child in which there has been and can be no exploitation because the producer and subject of the allegedly child-pornographic photo are the same person? Can a 14-year-old "exploit" herself?