Sexting And The First Amendment

May 16, 2011

Is there a first amendment right to engage in sexting with your friends?  For purposes of this post, sexting is defined as “the act of sending sexually explicit messages or photographs, primarily between mobile phones.”

There is no issue about the legality of sexting between consenting adults. Bret Favre may be embarrassed, but he is not being prosecuted. There are limits on what and how you may text, however.  The U.S. Supreme Court has ruled that an employer can limit an employee’s right to “sext” on a business phone. The employee had claimed such prohibition was a privacy violation.

There is no issue regarding an adult sending lewd or sexually suggestive images of an underage child over the internet. That act can be prosecuted as child pornography if the images are deemed to be pornographic.

The real constitutional questions arise when underage kids are caught sexting photographs of themselves. Last year, New York City public schools announced that sexting was prohibited, with punishments as severe as a ninety day suspension. The New York chapter of the American Civil Liberties Union spoke out on behalf of the students. The ACLU objection centered around the vague definition of sexting, and also objected to the prohibition extending to students engaging in sexting off school grounds and at home.

According to the Parental Control Apps web site, 22% of teenage girls and 18% of teenage boys engage in sexting. Child pornography prosecutions have been brought in various jurisdictions. The New York Times covered a Washington case where a fourteen year old girl took a nude photo of herself and sent it to her boyfriend. He then forwarded it to another student, who forwarded it to her friends, asking them to forward it to their friends. The friends were arrested, but the girl who took the photo of herself was not. had a recent post on this topic. There is a quote from New York State Senator Eric Adams that sums up the problem faced by schools and the court system:

“Child pornography laws were not designed to arrest kids for sending and receiving nude pictures of their boyfriend or girlfriend,” said Adams. It’s definitely a complicated scenario where normal juvenile mischief collides with the internet and modern technology and turns into a major problem.”

Perhaps the Supreme Court will address how constitutional free speech and privacy rights apply to underage kids choosing to engage in this activity.


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