Mimesis Law
22 April 2021

Teen Sexting Needs Constitutional Protection

 February 15, 2017 (Fault Lines) — Americans believe strongly in two important principles:

  1. We have to protect our children from sexual predators.
  2. It’s morally acceptable to put children in an enclosed space with sexual predators.

Unfortunately, 2 tends to trump 1. This is especially true with sexting, where America’s puritanical pearl clutching collides with its geriatric distrust of technology. Because children of similar age hang out together and may not know the law, it’s not uncommon for children as young as 14 to be charged with serious sex offenses. And when I say it’s not uncommon, I mean that “the single age with the greatest number of offenders from the perspective of law enforcement was age 14,” according to a 2000 study by the Bureau of Justice Statistics.

Lenore Skenazy adds an anecdote to the pile with her profile at Reason of an eighteen-year-old boy, Zachary, charged with receiving five indecent pictures from a thirteen-year-old girl in Virginia. While the article did not seek comment from prosecutors on the case, it did confirm that Zachary is set to plead guilty to two counts of indecent liberties with a minor, a class five felony, to avoid going to trial on charges of child pornography and using a computer to propose sex.

Skenazy’s article suggests that the problem is overzealous prosecution and draconian sexting laws. But it’s hard to draw that conclusion just from her summary—without knowing whether Zachary solicited the photos, what he said, or whether he distributed those photos to other. It’s hard to see whether this really was prosecutorial overreach or just a teenager being treated as anyone else would be under the circumstances.

But the real problem may be something else—our country’s continuing insistence that any photo of a minor that someone, somewhere, might consider indecent is stripped of all First Amendment protections, even if it doesn’t meet the obscenity standard. As the inimitable Marc Randazza points out, this poses a problem:

Child porn is not limited to depictions of child abuse. Prosecutors have gone after innocent content like baby pictures. I personally have slapped my wife’s camera out of her hands as she readied herself to take a picture of one of our kids in the tub. Why? Because I know that the day may come that some prosecutor decides that he wants to shut my ass up – and what better way than to drag me through the streets, accused of possessing and creating child porn? Sure, it is just a wee baby picture. And maybe that’s how the jury would see it too. But, I’m never taking that chance. Baby pictures must be clothed in my house.

Wide-ranging child pornography laws chill speech that we might otherwise consider valuable. That can include stuff as innocuous as bathtime photos of children, or as ordinary as some sixteen-year-old idiot possessing a picture of his own penis. It means that what Lenore Skenazy describes as five chaste pictures of a girl in her underwear can turn someone who would have gone on to lead a productive life into a sex offender.

Ordinary people can’t bank on prosecutors to be reasonable. After all, they happily imposed disparate crack-sentencing guidelines for years on minorities without a hitch. Their behavior didn’t change when someone confronted them with the arguable racism of their position. To the extent that they grew more reasonable, it was because the law did. When it comes to speech (and photographs are indisputably speech), relying on the discretion of a prosecutor forces the “speaker to hedge and trim.” And in a world where almost everyone has a photo of their baby in the bath, who wants to risk ticking off a prosecutor?

Nor can we rely on legislatures to pass some sort of child pornography criminal justice reform. It’s been a thirty-year struggle getting politicians to the table on non-violent drug possession offenses. In a world where no amount of crime reduction will persuade people that the problem isn’t getting worse, the notion of letting some creep with a box full of Polaroids slink by isn’t going to sell well at the ballot box.

The solution is in doing the Supreme Court managed to do so well in United States v. Stevens, where the Court declined to create a new category of unprotected speech to prohibit the distribution of crush videos. No balancing test in the world could serve to protect the marketplace of ideas. To the contrary, “[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”

The solution to overzealous sexting prosecutions isn’t going to lie with some legislature. Or some reasonable prosecutor. It’s going to come about when we start applying the same obscenity standard to pictures of a child in the bathtub that we apply to portraits of the Virgin Mary done up in elephant dung. Prosecutors shouldn’t be able to get away from proving that a photo “appeals to the prurient interest of the average person” or be “patently offensive” in order to secure a conviction. Any child pornography worth the name is going to fit that standard.

In the abandonment of that standard, we have condemned countless children to juvenile detention facilities where their actual sexual assault is damn near a foregone conclusion. We have incentivized police to rifle through the cell phones of children—presumably to check for violation of the law, but perhaps just as likely to fulfill their own prurient interests. If the British government were doing this in 1776, you can be damn sure it would make it into the Declaration of Independence. A free-floating value determination by prosecutors is no substitute for the constitutional liberty to possess pictures of your own junk.

2 Comments on this post.

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  • Jeff Gamso
    15 February 2017 at 10:37 am - Reply

    You left out the best (and most important) line from U.S. v. Stevens:

    “But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

  • Adrian
    15 February 2017 at 10:52 am - Reply

    Wouldn’t a lot of the images in question meet the obscenity standard anyway? At least the kids would not be branded as sex offenders, but they could still face jail time and its related harms at the hands of the same bunch of idiots who think kids should be prosecuted for that sort of thing in the first place.