« Some thoughts on the timing of the spring submission process for law reviews | Main | More on Pennsylvania sexting case »
Friday, March 27, 2009
More on sexting
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?
Posted by Howard Wasserman on March 27, 2009 at 10:32 PM in Howard Wasserman | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef01156e75f458970c
Listed below are links to weblogs that reference More on sexting:
Comments
It seems that the “interesting First Amendment angle” might go even further. For example, what is the First Amendment status of ‘sexting’ pictures once they are produced and out in circulation? Are others then constitutionally free to assemble, edit and pass the images along as part of their own expression downstream (within, of course, the limits of fair use)?
No doubt some amount of pictures can be banned from redistribution on the ground that their small number falls within the scope of constitutionally permissible (i.e., non-“substantial”) overbreadth, even if the pictures lack the exploitation nexus that is the basis of the Ferber-Osbourne exceptions. But if 20% of teens are making nude pictures of themselves (as one recent study indicates), that activity may add up to a whole lot of expression, most of it probably in the category of “mere” nudity and thus not likely obscene. A law that outright banned such a large amount of expression would seem to get well into the realm of impermissibly abridging a “substantial amount of protected speech.”
Such a conclusion might also pose a problem for the recordkeeping requirements of 18 USC §2257. The teens who produce pictures of themselves would be legally required to comply with the recordingkeeping, on pain of 5 years in jail. But they would not, of course, comply, and it’s unlikely that the current Justice Department would prosecute them for the omission. On the other hand, if the teen producers of nude pictures did not comply, it would be impossible for the downstream recipients to comply either—raising questions about the constitutionality of the whole 2257 scheme.
Not that there aren’t questions about the constitutionality of the whole 2257 scheme anyway.
Posted by: John Humbach | Mar 27, 2009 11:19:22 PM
The comments to this entry are closed.