Sunday, April 19, 2009

Possible legal defenses for maldistribution of teen sexting images?

The classic reason for exempting distribution or even possession of child pornography from First Amendment protection is that a child must be harmed in the making of the porno (drawn or computer created child porn seems covered so far). But a teen who makes a nude image of herself is not harmed. And sexting the image to a boy she may have legal sex with hardly raises a compelling interest in favor of overriding her most basic constitutional right.

Unauthorized distribution to other teens; to adults? If grandma makes the most extreme pornographic images of herself and I sext grandma's images around (I am 65) against her wishes would that constitute sexual abuse of grandma under the law? Or could it at more logically be classified as invasion of privacy?

Ultimately it is constitutionally possible to criminalize unauthorized distribution of even adult self-made porn against the wishes of the self-image maker but that would come under a different category than pornography (ultimately not all that important by which category to a jailed offender).

But, if current law against distributing child abuse was based on – if the intention of the legislature was – to protect children from the sexual abuse during image making…

…then, law prohibiting distribution of sexted material may have to be written over from scratch to register the intention of the legislature on this entirely new question.

Could we constitutionally use the threat of jail to deter a child from the potential harm of making or sexting images of herself in the same manner that we jail drug users to deter harmful drug possession? Jailing a teen to prevent the possibility her image may be shared without her okay sounds more than a little too thin to pass First Amendment muster.

With a situation of millions of teens (some over 18) distributing sexting images without permission of the maker it may be better public policy to leave the responsibility on the maker and original distributor of the her own image – for creating something like an “attractive nuisance” – leaving the threat of a law suit her best protection -- rather than making millions of teens into "electronic prohibition" felons.

Until such constitutional and policy questions are settled, perhaps no prosecutions like that of the 18 year old in Florida, ought to take place.

1 comment:

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