Journal einhverfr's Journal: Sexting, Ferber, and Child Porn 2
This week the Third Circuit upheld the injunction against prosecution in the teen sexting case which has previously been mentioned on Slashdot. The third circuit didn't reach the question as to whether the photos at issue in the case were Constitutionally protected (this will probably be saved for trial). However, it seems to me that this is a good opportunity to discuss something a bit beyond the case: how vague child pornography laws are turning millions of normal teens into felons and sex offenders. I believe that the laws must be changed (either through legislative or judicial branches) to stop this trend. I think it should further be stopped without overly harming actual attempts to prosecute those who are engaged in the sexual abuse of minors by producing child pornography.
In 1982, the US Supreme Court ruled, in New York v. Ferber, that child pornography, whether technically obscene or not, was outside the protection of the first amendment. The Ferber case created this exception based on the compelling interest of the state in protecting children from sexual exploitation and abuse, and noted that the economic trade of child pornography was intrinsically connected to this sort of abuse. Given the negligible expressive value of such works in the context of Ferber, they were not protected by the First Amendment. I think this rationale was sound in 1982 and to some extent, as regards real child pornography, it is still sound today.
The rise of the internet and multi-media capable cellular phones has changed a great deal both in how real child pornography is distributed, tracked, and prosecuted, but it has also created a number of problems for the original Ferber rationale. The rise of sexting is one example, as is the rise of underage individuals taking photos of themselves engaged in sexual activity without the instigation of an adult. While Ferber is a helpful rule in tracking down those who aid and abet sexual predators, it also is criminalizing an increasing number of ordinary teens, in a direct affront to our basic rule of law and sense of justice. We are now facing the absurdity of throwing teenagers in prison and branding them for life as sex offenders in the name of protecting them from sexual predators. These sorts of prosecutions have a number of things in common: they are disconnected from the harm discussed in Ferber, they are typically non-economic in nature, and they may have, in their context, more than minimal expressive value.
First, Ferber was a response to a real problem regarding sexual exploitation and abuse of children. We can probably all agree that production of child pornography is a problem and that it may be legitimately outlawed. However, when a teenager takes sexually explicit pictures of him/herself and sends them to another teenager (typically a boyfiend or girlfriend), this is a very different situation. Here we do not have a sexual predator preying on a child. The rationale of the law and of Ferber is entirely inapplicable to the situation. It is further likely that only a small minority of such material is actually ever found, and that if current trends continue, the vast majority of sexually explicit images of real minors may be entirely divorced from the Ferber rationale. If this is the case, then Ferber would have to be revisited and either narrowed (which I support) or eliminated (which I do not).
Secondly, most of these are entirely non-economic in nature. I think Ferber could be held as applicable if an adult were paying a minor to take such pictures or to hand them over. However, where this is a private exchange of material from one teenager to another, then it doesn't seem that even the economic motivation portions of the rationale apply.
Finally, the Supreme Court has, in other cases, held that adults have an expressive right to be involved in non-obscene sexually explicit photographs. The child pornography cases to date have never reached a question of whether a minor has a right, absent adult intervention, to similar expression. If the First Amendment is truly seen by the courts as based on a natural right, then the bright line of saying "don't take sexy nude pictures of yourself before your 18th birthday" doesn't seem be tenable.
So what is to be done? I can think of a few options:
The first is that the Ferber rationale could be ruled to be inapplicable to prosecutions of minors. This would be the simplest approach and simply rule that minors cannot be prosecuted for charges relating to child pornography. There could be a number of Constitutional theories on which this could be based, including the idea that minors are not without expressive rights of this sort (and therefore strict scrutiny is not met as applied to minors), and that the rules are unconstititionally vague as applied to minors. This is the sort of thing which could be done as an "as-applied" Constitutional challenge or as a legislative change.
The second is that the Ferber rationale could be narrowed to require specific intent to possess child pornography AND a general intent to contribute to the exploitation, abuse, or privacy violations of a minor (i.e. intentionally possessing child pornograpohy, knowing that it was contributing to exploitation or abuse). This is more disruptive, and would make cracking down on child pornography harder but still possible. This is the sort of change that I am somewhat ambivalent towards, and I think only the legislature could really do it. Note that this would not categorically prevent minors from being prosecuted under these laws and would leave some sense of equal applicability.
Finally, Ferber could be overruled and obscenity laws only could be seen as applicable. I see this as very dangerous because I think obscenity laws should be declared Unconstitutional on both vagueness and first amendment grounds. Leaving this as the sole solution to the issue of child pornography would make that far harder. Only the courts could do this.
In the end, I favor simply excluding minors and those barely over the age of majority (say, those who are 18 years old) from such prosecutions, provided that there are no direct allegations of child abuse tied to the pictures (i.e. the Ferber rationale does not apply). If there are such allegations, they should have to be proven as a part of the trial process.
However, regardless of what we do, threatening to send adolescents to jail and brand them as sex offenders for life for doing what would be Constitutionally protected a few years later has to stop. Not only is it entirely unjust but it is an affront to the ideal that we live in a country ruled by laws in accordance to the ideals of Liberty and Justice.
Completely Agree (Score:2)
This is ridiculous and has no real rationale. It's an over-reaction to a trend that would have happened anyway. What about the teens that get in private chat sessions on Skype and do sexy stuff for each other? Should they be labeled as sex offenders (they probably should have computer time monitored or taken away by responsible adults, but that's not the point)? It seems to me sexting and such web cam sessions would fall into the same category and I would maintain that such web cam sessions do happen.
Re: (Score:2)
I think it does serve a rationale though.
1) Someone complains to the prosecutor: Look what so-and-so sent my son/daughter! I want charges to be filed!
2) Prosecutor wants to make people happy/get re-elected. Looks up applicable laws in the books. Sure enough. Arguably child pornography....
3) Charges are filed as a sort of "customer service" exercise.
Of course the rationale is entirely self-serving for the prosecutor and has nothing to do with the public good......