Saturday, November 10, 2012
Xiyin Tang has posted The Perverse Logic of Teen Sexting Prosecutions (and How to Stop it) (Boston University journal of Science and Technology Law, Forthcoming) on SSRN. Here is the abstract:
The recent spate of child pornography prosecutions for teenagers engaging in a little harmless fun (in other words, “sexting,” where seductive, partially-nude or fully-nude images of one teen is transmitted to a lover, who might in turn send it to some friends) has called for one seemingly inarguable conclusion: such prosecutions are unconstitutional, in contravention of a teen’s First Amendment rights, and do not fall into the concerns the child pornography statute was meant to address. However, this essay examines both the Court’s child pornography jurisprudence and First Amendment doctrine as it relates to minors, arguing that a synthesis of the two would strongly suggest that sexting is both unprotected by the First Amendment as it also presents many of the same problems inherent in child pornography. However, threatening teens with lengthy jail sentences and criminal prosecutions under a statute designed for sex perverts does not seem equitable, either. Therefore, I propose a compromise that is perfectly in line with the Court’s harm-based approach to child pornography: a Romeo and Juliet carve-out within the child pornography statute that would exempt teenagers who can legally have consensual sex under applicable state law. By creating a rule that affirmatively reduces a prosecutor’s power to press charges, this carve-out nonetheless keeps the possibility of a child pornography charge open at the outer edges of sexting behavior while foreclosing such opportunities for prosecutorial evangelism in the normative range. This essay hopes that by reframing the dialogue away from First Amendment rights and keeping some sexting on the books as a crime, we are sending the appropriate message about sex — that it is intimate, not to be traded for entertainment value or as social currency.