Unfortunately, I missed most of last weeks discussion of the cases from Speech Regulation because I was at the Herzog Moot Court Competition. However, I did read the cases and received notes from one of my classmates on the topics discussed in class. After reading my classmate’s notes and comparing my own notes from the chapter I think it would be very interesting to contrast Speech Regulation in the name of protecting children with a current news topic: Sexting.
I wrote an article for Social Media Law Student a few weeks ago on Sexting and I’d like to expand on my thoughts towards sexting and Speech Regulation in the name of child protection.
From the reading we learned that many of the cases in support of regulation based their argument on Government having a strong interest in protecting minors from harmful and indecent material. I found it really interesting that Government felt it was so important to protect minors from being exposed to “obscene and indecent material” from a variety of avenues like movie theaters, radio, television and the internet, but failed to ask whether teens were contributing any of the “indecent” material.
According to my research for the Sexting article I wrote, 38% of teens engage in a practice called “sexting”. “Sexting” is when a minor sends a nude photo via their mobile phone or computer to another minor.
The government has a lot of concerns that teens are accessing nudity or obscene material from porn sites, but in reality minors are accessing much of the nudity and obscene material from each other, not websites.
How can the government protect minors from “obscene” material when minors are the creators and distributors of the “obscene” content?
The government’s answer is a broken answer. Just a few months ago an 18-year-old teen was charged with distributing and possession of child pornography after he received and shared a photo of his minor ex-girlfriend in a text message. He was sentenced to two years in prison and told to register as a sex offender.
CosmoGirl.com, a popular teen magazine, asked its readers how many of them knew sexting was a crime and still sexted anyway. 1 in 5 of their readers admitted to sending a sexually explicit photo to another person knowing the transmission of this content was illegal.
If 1 in 5 teens is participating in this form of activity, shouldn’t the government be more concerned about obscene material distributed between teens than obscene material distributed through already heavily regulated mediums like the radio, television and the internet? Is it really in public policy’s best interest to arrest and charge minors who engage in sexting as sex offenders for life and sentence them to two years in prison?
Additionally, distribution and possession of child pornography is illegal whether adults have access to it or whether children have access to it. But then again, isn’t regulating the sexual behavior a violation of the law? What about teen sexual behavior? Does the government have the right to create laws that punish teens who choose to relinquish nude photos of themselves to other teens through a communication device like a phone? Doesn’t that violate the 1st Amendment’s right to freedom of speech?
According to the Criminal Law classes I took, a minor cannot consent to sex because he or she is not an adult and therefore sex with a minor is a form of rape. Yet minors do consent to sex with each other, also known as the Romeo and Juliet law, which prohibits minors from being prosecuted for having sex with each other.
Why isn’t there any law protecting minors from their own lack of maturity when it comes to sexting? There are laws protecting minors from criminal charges for having sex with other minors, but none for minors who engage in a violation of a law intended to prevent the distribution and possession of child pornography by child predators.
Are minors the child predators who the lawmakers were intending to prosecute when they created child pornography laws? The government can regulate the radio, television, movies, the internet, but not communication between two minors. So the government’s response to this problem is to label promiscious teens as sex offenders and charge them with possession and distribution of child pornography. Inevitably, hormonal and curious teens are being punished by the very laws intended to protect them.
Somehow this just doesn’t seem like the lawmaker’s intent for creating child pornography laws and it doesn’t seem to prevent the problem of obscene material in the hands of minors either.
I have some thoughts about the pornography laws and sex laws also. I don’t have any law training, but I try to use common sense. I think that kids know enough about sex, even at young ages these days to make decisions. What should be done is not try to make some things against the law, but educate people about the consequences of their actions. Example, you have sex you could wind up pregnant or get an STD. You pose nude or whatever, people are going to see it. Then, once educated, let the people decide their own path.
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