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The Age of Consent: When is Sexting No Longer “Speech Integral to Criminal Activity?”

Posted By Antonio M. Haynes On January 21, 2013 @ 1:01 am In Constitutional Law, Cornell Law Review, Criminal Law & Procedure, Law & Politics/Social Science, Law Review Note, Legal Philosophy & Critical Theory | No Comments

Jane met her boyfriend Jim at a high school football game. Jane was just a few days shy of sixteen at the time, and she and Jim, seventeen, instantly connected. They began dating, and, a few months later but before Jim’s eighteenth birthday, the two had sex together for the first time. In this respect, Jane and Jim were like many other teens across the country. Their relationship continued, and the two fell in love. One night, Jane decided that she and Jim should record themselves having sex. They did not have a webcam, so Jim suggested that they use his new iPhone. The two made several videos, and Jim kept them on his phone, never showing them to anyone else. Once Jane got a new Verizon Droid, she began taking naked pictures of herself, sometimes masturbating, and sent them to Jim. Jim returned the favor, often sending Jane pictures of his covered, but discernibly turgid penis. Jane never showed the pictures to anyone, either, not even her very best friend.

In most states, the sex that Jane and Jim had would be completely legal. Yet, under federal law and the law of many states, Jane and Jim could face prosecution for the creation and dissemination of child pornography. The current federal child-pornography statutes make no distinction between pornography created by minors for one another, on the one hand, and the deeply exploitative materials that result from the actual rape and molestation of children, on the other. Indeed, as more teenagers become technologically savvy, media reports of the “sexting” epidemic abound. Sexting is the sending of nude photographs via text message and recent studies show that the practice is quite prevalent among today’s teenagers. Although sexting has been described as the “modern equivalent of ‘streaking,’” it is perhaps more accurate to describe the process as a “more technological approach to sending a flirtatious note.” The majority of teens who sext report doing so in order to be “fun or flirtatious” or to perhaps send their partner a “sexy present.”

As they generally are with youthful indiscretions, many parents are outraged by sexting. Teachers and school administrators have also taken note of the phenomenon and have begun confiscating students’ cell phones and giving presentations detailing the dangers associated with sexting. Reports about sexting have appeared in major newspapers. Indeed, as two scholars recently noted, to see how quickly sexting has become an important and prominent legal issue in America, one need only turn on the television. Local prosecutors, “trying to jam square pegs into round holes,” have vigorously responded, charging some minors who likely believed they were only virtually flirting with creating, possessing, and disseminating child pornography.

These prosecutions are not only jarring, but are likely unconstitutional following United States v. Stevens.1 In Stevens, the Court refused to create a new First Amendment exception for depictions of animal cruelty. While the Court’s holding received substantial attention in both the popular press and in law reviews, the Court’s distinguishing of New York v. Ferber2 and the resulting doctrinal ramifications have been less fully explored. In Ferber, the court sustained a New York statute that proscribed “hard-core” child pornography. Many scholars viewed Ferber as establishing the framework by which the court would carve out categorical exceptions to the First Amendment. Stevens, however, clarified the methodology. In rejecting the Government’s request to carve out a new exception for depictions of animal cruelty, the Court noted that “‘[f]rom 1791 to the present’ . . . the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations.’ These ‘historic and traditional categories long familiar to the bar’—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—are ‘well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any [c]onstitutional problem.’” Notably absent from this list, of course, is child pornography.

In discussing Ferber, the Court effectively “assimilated child pornography to the traditionally unprotected category of ‘speech integral to criminal conduct.’” Scholars have noted that this description of Ferber is surprising and may well make Stevens one of the most doctrinally significant constitutional opinions of 2010. Stevens is a pathmaking decision that makes plain that there is not a “child pornography exception,” to the First Amendment, but instead “a speech integral to criminal activity exception” that sometimes encompasses child pornography. The Court’s pronouncement is also socially significant since it comes just as the United States is seemingly flooded by “a crime wave of child pornography offenses perpetuated by middle- and high-schoolers.” This Note argues that prior to Stevens, many courts and scholars assumed that child pornography was simply an unprotected category of speech. In addition, courts and prosecutors in sexting cases further assumed that older teens’ sexting was child pornography. Both of the premises were dubious from the start. Following Stevens, however, these premises are untenable. First, sexting is simply not child pornography as the Supreme Court has repeatedly defined the term. Second, even if sexting could be considered child pornography under some theory, after Stevens there is no longer a “child pornography exception” to the First Amendment but, instead, a “speech integral to criminal conduct exception.” Thus in determining whether a particular non-obscene image constitutes child pornography, the initial question must be whether there is specific illegal conduct to which the speech is integral. Because neither nudity, masturbation, nor even large amounts of teenage sex are illegal, statutory-rape laws are the most logical starting point for determining whether sexted images sent between older teens are protected speech.

Generally, statutory-rape laws prohibit sexual intercourse with an unmarried person under the age of consent. Statutory-rape laws were on the books in England as early as the thirteenth century. At the time of the Founding, colonial statutes basically imported this language, choosing either ten or twelve as the age of consent. Since the Founding, the actual age of consent has varied as the result of various policy initiatives by interest groups and public officials. At one point, Delaware’s age of consent was as low as seven years old, and Tennessee’s as high as twenty-one. While these variations in age of consent do not necessarily mean that the states are constitutionally free to set the age of consent wherever they would like, the Supreme Court has previously rejected a constitutional challenge to a statutory-rape law. Thus, for First Amendment analytical purposes, statutory-rape laws are likely “valid criminal statute[s]” within the meaning of Stevens.

Several scholars have recently called for more reasoned responses to the sexting epidemic. These include educational and juvenile programs, as well as statutes that specifically address sexting as a new category distinct from child pornography. It is unclear whether these would be valid criminal statutes to which sexting prosecutions could be tied. Indeed, the arguments put forth are not unlike the ones advanced by the Government in Stevens: because sexting causes “serious, and often unanticipated, psychological and reputational consequences,” it warrants legislative responses targeting the speech. But because sexting between teens who have reached the age of consent is neither child pornography nor likely obscenity, any statutes that seek to address sexting without tying the activity to the age of consent would problematically draw content-based distinctions.

Such content-based distinctions on speech are presumptively invalid and subject to strict scrutiny. To survive strict scrutiny, the content-based restriction must be narrowly tailored to promote a compelling governmental interest using the “least restrictive means.” While diversionary programs may be less restrictive than felony prosecutions, it is far from clear that they are the least restrictive means. In any event, at least one scholar has noted that “a majority of the Court has never sustained a regulation that was strictly scrutinized for content-discrimination reasons.”

Further, tying sexting statutes to validly enacted statutory-rape or age-of- consent statutes would re-invent the First Amendment, restoring basic First Amendment principles. Traditionally, “free speech jurisprudence has held that liberties in the realm of expression must remain broader than liberties in the realm of action.” For the most part, the Court’s jurisprudence on sexual speech has reversed that rule. Indeed, permitting states to impose legal sanctions on older teens for sexting only serves to perpetuate the “suggest[ion] that there is something more dangerous about the representation of sex than the act of sex itself—a most perplexing premise indeed.” Tying child-pornography statutes to age-of-consent statutes would therefore make the realm of allowable expression at least as broad as the realm of allowable action.

While holding that sexting is constitutionally protected speech is fairly straightforward as a doctrinal matter, it seems problematic as a practical one. It is clear that many states will continue to try to regulate teens’ sexting. Forcing states to tie sexting prosecutions to the age of consent could cause many states perversely to increase the age of consent to eighteen. This would have the unpalatable consequence of criminalizing an even wider swath of everyday teenage activity.

These difficulties suggest that, for those states that insist on criminalizing sexting, a radical rethinking of the way activities like “sexting” are treated may be appropriate.

Sexting is not necessarily pure speech. While it is probably inaccurate to call sexted images nothing more than “masturbatory aids,” the fact that several authors have described sexting as the modern day equivalent of streaking or high-tech flirting underscores a general inclination to somehow treat sexting as action rather than speech. To the extent that sexting is done simply to entice or titillate sexual partners, sexting may be a new form of foreplay. States already restrict minors’ ability to engage in sex acts that are typically considered foreplay. Thus for those who support criminalization, the only real hurdle to this approach is fully distinguishing between sex acts that are speech and those that are not. The current distinction between pornography and prostitution may provide some guidance.

Sex acts are legally significant events. For First Amendment purposes, I propose defining sex acts as bilateral sexual exchanges to which legal consequences may validly attach. Although the line between prostitution and pornography seems arbitrary, the distinction is instructive and may prove useful to those states that wish to consider a different approach to regulating sexting. Traditionally, prostitution has been defined as a “bilateral [sexual] exchange” between A and B. Pornography, on the other hand, generally involves a nonparticipating C, who pays A to perform a sex act on B. Because the effect of pornography “occurs through the mediation of an audience” rather than from C participating in a sex act with A or B, pornography and its production are protected by the First Amendment. Another distinction is that pornography “neither precipitate[s] nor perpetuate[s] the social ills” that follow from prostitution. Taken together, these propositions could lead to the conclusion that where a sex act does not require the mediation of a nonparticipating party, legal consequences may attach to the sex act without running afoul of the First Amendment.

Under this approach, sexting could be viewed as a bilateral sexual exchange more akin to prostitution than to pornography, the creation of which necessarily entails a nonparticipating C. Sexting, like other forms of foreplay, entails one party performing a sex act for another. To be sure, unlike prostitution, sexting is not generally associated with monetary exchanges. But a fee is not typically a necessary condition for the state to attach legal consequences to a sex act. Although the sexted image may be forwarded to a third party, this fact alone would not transform the sexted image into pornography. In pornography, A and B have zero expectation of privacy and intend for there to be a nonparticipating C. Indeed, this privacy rationale is probably the basis of tort liability when adults disseminate pictures of their sexual partners without consent. Moreover, the types of harm identified with teen sexting, including bullying, suicide, and depression, are not entirely different from the “profound physical, emotional, and psychological consequences of [teen] sexual activity.” Accordingly, states that insist on regulating sexting may want to consider treating sexting as a sex act and may want to regulate it in much the same way that those states regulate other sex acts.

Acknowledgments:

Antonio Haynes is a 2012 graduate of Cornell Law School.

This essay is based on the note, Antonio M. Haynes, The Age of Consent: When is Sexting No Longer “Speech Integral to Criminal Activity?”, 97 CORNELL L. REV. 369 (2012).

Copyright © 2012 Cornell Law Review.

  1. 130 S. Ct. 1577 (2010).
  2. 458 U.S. 747 (1982).

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