First Amendment Sexual Privacy: Adult Sexting and Federal Age-Verification Legislation
45 Pages Posted: 29 Apr 2014
Date Written: February 15, 2014
The modern sexting phenomenon amongst adults raises important questions at the intersection of relational privacy, free expression, and federal criminal law. A little-known but long-standing federal statutory scheme – 18 USC § 2257, § 2257A, and the accompanying Attorney General regulations (“Section 2257”) – threatens to criminalize the private exchange of sexual communication between consenting adults. While there has been relatively frequent litigation involving Section 2257 initiated by the commercial adult entertainment industry, courts and scholars alike have been relatively silent as to Section 2257’s impact on private, not-for-profit sexual speech. So too has the literature on the legality of sexting focused almost exclusively on adolescents, whose erotic exchanges raise concerns about child pornography and human trafficking not triggered by adult communication. Even when the debate has turned to private adult sexual expression, it has typically focused on the dangers related to non-consensual disclosure, commonly known as “revenge porn.” As a result, Section 2257’s application to a broad range of otherwise lawful adult expression remains virtually unchallenged and largely ignored by judges, academics, and the American public.
Yet the implications of Section 2257 and its application to adult sexting illustrate significant deficits in current First Amendment law. For example, existing First Amendment doctrine recognizes some protection for sexually explicit communication and other private expression, but fails to incorporate aspects of relational privacy embodied in the Fourteenth Amendment. In addition, the proliferation of private adult sexual expression in the wake of oppressive federal criminal laws challenges traditional assumptions about chilling effect and prior restraint. Section 2257 also strikes a curious balance between commercial and private expression, favoring the former with special opt-out provisions not applicable to the speech of ordinary adults. In light of these doctrinal shortcomings, this Article argues that free expression jurisprudence should expand, at least with regard to Section 2257’s burdensome criminal regime, to incorporate aspects of relational privacy derived from the substantive due process clause.
Keywords: First Amendment, sexting, privacy, communication, Section 2257
JEL Classification: K10, K14
Suggested Citation: Suggested Citation