This Note argues that prior to United States v. 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.” After teens reach the age of consent, their sexual activity is not typically criminal conduct. Thus, the First Amendment must fully protect sexted images of completely legal sexual acts.
Part I briefly discusses “sexting,” its prevalence among today’s teenagers, and how it has resulted in a surprising number of recent prosecutions of teens under various child-pornography statutes. Part II explores the growth and development of child-pornography law in the United States and explains that using child-pornography statutes to go after what may be nothing more than high-tech flirting is plainly contrary to language in several key First Amendment cases. Part III explains that after Stevens, because there is no longer a child-pornography exception to the First Amendment but instead an exception for “speech integral to criminal conduct,” child-pornography statutes must necessarily be tied to another “valid criminal statute” to survive constitutional scrutiny. With respect to older teens’ sexting, the most logical starting point is state statutory-rape laws, which generally set the age of consent. Because of widely varying state statutes regarding the age of consent, Part IV critically examines the potential consequences of tying First Amendment protections to these underlying state criminal statutes. Part IV then offers an alternative analytical framework that may help those states that wish to do so address the harms of sexting while respecting the strictures of the First Amendment. That approach, however, is fraught with its own set of concerns, constitutional and otherwise.
Keywords: sexting, First Amendment, statutory rape, United States v. Stevens, minors, teens, technology, child pornography, obscenity, Ferber, content-based, criminal conduct
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