Sexting and Freedom of Expression: A Comparative Approach
48 Pages Posted: 20 Oct 2017
Date Written: October 3, 2017
The media has recently been highlighting a rash of prosecutions of teenagers who engage in “sexting” – sending nude or sexually explicit images of themselves or their peers – under child pornography laws. These prosecutions have led to mass criticism for threatening teens with long prison terms and registering as sex offenders for activities that are perceived to be relatively innocent. Many, if not most, of these sexting teens are legally permitted to engage in sexual activities through their states’ statutory rape laws, which leads to an absurd situation where teens are permitted to engage in sex but not photograph it. This mismatch between different ages of consent leaves sexting prosecutions open to a myriad of constitutional challenges. This article examines the four possible constitutional challenges to sexting prosecutions: freedom of expression, equal protection, right to privacy, and due process. Most of these challenges have already been brought with mixed success. Although the Supreme Court has not yet ruled on the issue, as this article shows, teens are likely to succeed on at least some of these claims. For that reason, this article concludes that states should be proactive and create sexting legislation that resolves the conflict between their statutory rape and child pornography laws. These laws should also address non-consensual forwarding of sexually explicit messages.
Keywords: Sexting, Freedom of Expression, comparative law
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