Is Sexting Free Speech?

The freedom to send sext? This one really creates a challenge to the application of Constitutional Law. I am reminded of my Constitutional Law class where my professor attempted to challenge our newly budding legal minds with crazy scenarios; not yet challenged in the Supreme Court to see if we could analyze how the Court might come down on the issue. I have to say; none of us came up with the scenario of teenagers' right to sext. In all fairness, most of us were over the age of 25 and therefore did not get the opportunity to sext prior to the age of 18.  And for those of you still confused; sexting is generally defined as the act of sending sexually explicit messages or photos electronically, primarily between mobile phones. Thankfully, it's not yet in the dictionary. However, its definition and place on the list of inalienable rights is being challenged in a Federal Pennsylvania Court today.

It's important to note that up and until this point; sexting was labeled as a crime; as violating the child pornography statutes on both the federal and state level. We're talking jail time, monetary penalties, and a lifetime as a registered sex offender. Sounds pretty extreme for the actions of a bunch of horny teenagers; misguided as they may be about the ability of their "private" messages getting to the general public. However, is it really a constitutional right to send naked pictures of yourself to another when you cannot even vote, drink, or in some cases drive?

Essentially, the ACLU (the party representing the teens) will likely argue that sexting does not meet the Supreme Court's definition of child pornography. Under the US Constitution, child pornography, unlike regular pornography, is not protected under the right to free speech, because it involves child endangerment. However, in New York v. Ferber the Supreme Court held that computer generated child pornography was protected under the First Amendment. Therefore, if the children are creating the explicit photos and text themselves, are they also endangered?

Perhaps there could be a middle ground. I think most parents would argue that they do not wish naked or half naked photos of their children circulating the internet or phone messages, regardless of how they were obtained. On the other hand, should those same children be prosecuted for distributing child pornography and therefore become lifetime registered sex offenders? Perhaps now is the time for the legislators to take note and pass laws to protect teens from the distribution of their photos without completely ruining their lives.

Below is an interesting, non-legal, discussion of sexting as it applies to child pornography US Supreme Court decisions:

"Sexting" - A Legal Analysis of Supreme Court Cases