Do Teens Have a First Amendment Right to Sext?

Welcome back to our monthly-ish summer newsletter. This is a special series of the IfRFA newsletter, written by our cohort. We are thankful to Nirali Vyas for writing this edition! If you missed our last newsletter by Makela Hayford, you can read that here.
   
            Let’s face it. Teens are sexting and they will continue to do so for the foreseeable future. Yet, even consensual teen sexting—an innocuous part of flirtation and sexual expression in the digital age—violates statutes that regulate the possession and transmission of child pornography in 23 states, according to a 2019 study. For example, in 2019, the Maryland Court of Appeals upheld the prosecution of a 16-year-old student who voluntarily distributed a video of herself performing a sexual act. Similarly, in 2015, a 16-year-old star high school athlete from Fayetteville, North Carolina faced five felony charges for sending nude photos of himself to his girlfriend, who was the same age as him.
 
            Pediatric researchers have spoken out against states that prosecute teens for consensual texting, stating, “just like sex, sexting should be considered a health and development issue, not a legal issue.” Moreover, the researchers say it is perfectly normal for teenagers to want to engage in adult sexual behaviors and that their developmental states “make them susceptible to impulsive decisions and less consideration of consequences.” Of course, states have a legitimate interest in protecting minors from predators. However, federal and state child pornography laws—which have landed some teen sexters in sex offender registries and others in long prison terms—have, for the most part, failed to keep pace with technological and societal change.
 
          You might imagine that the First Amendment would have something to say about that, and you wouldn’t be entirely wrong. A line of Supreme Court decisions have declared it constitutional under the First Amendment for states to prohibit images that fall within two categories: obscenity and child pornography. Obscenity--a confounding term with myriad legal definitions--comprises of sexually explicit materials that offend contemporary community standards and have no literary, artistic, political or scientific value (i.e., the words/materials have no purpose other than to promote obscenity). Criminalization of child pornography, even if it does not meet the legal definition of “obscene,” also does not violate the First Amendment according to the Supreme Court’s 1982 New York v. Ferber decision. The Court’s rationale for  excluding this content from First Amendment protection is that a state’s right to regulate images depicting the sexual exploitation and abuse of children far outweighs an individual’s freedom of expression rights.
 
         Some experts have called for more states to model their laws after New Mexico's, which does not penalize individuals aged 14 to 18 for exchanging nude photos of one another. Others advocate a more unique approach: extending First Amendment protections to teen sexting and autopornography voluntarily created by teens (mirroring the freedoms that adults enjoy when it comes to generating and sharing sexually explicit, non-obscene content).
 
            One scholar, Alvin Primack, has recognized that a key step toward securing constitutional protections for teen sext messages is removing them from the category of “child pornography” altogether and understanding them instead as “a type of media content” free for adolescent experimentation. This approach is attuned to teens’ developmental realities, consistent with social attitudes towards youth sexting, and useful for stemming the overcriminalization of juveniles who engage in consensual sexual behaviors with their peers. 
 
          Youth, whose actions are already highly regulated in almost every setting, deserve meaningful sexual expression rights as they develop their identities and step into adulthood. Distinguishing teen sexts from child pornography in the law would thus be one common-sense step toward a freer society.   
 
Nirali Vyas is a J.D. Candidate at Vanderbilt University. She is passionate about racial justice, democratic representation, and money in politics. Prior to attending law school, she was a Research and Program Associate in the Democracy Program at the Brennan Center for Justice, where she conducted quantitative research about public campaign financing and other electoral reforms in New York state and at the federal level. Nirali also worked to develop scholarship on critical social issues at the Social Science Research Council and has completed internships at the Ford Foundation and the Trenton Prevention Policy Board. She earned her B.A. in Economics and Political Science from the College of New Jersey. 
   
Our next event is coming up fast on July 6th!
 
If you posted #SaveSheikhJarrah on your Instagram post, tried to send funds with the label “Palestinian Relief” on Venmo, or have committed to the BDS (boycott, divestment, sanctions) movement and tried to get a government contract, you may have encountered ways in which pro-Palestine voices are limited in both online and offline spaces.
 
Join IfRFA’s Director Kendra Albert on Tuesday, July 6th from 12pm-1pm ET for the event Silencing Pro-Palestine Voices: Online and Off. Our speakers include: Nadim Nasif from 7amleh, Radhika Sainath from Palestine Legal, and Diala Shamas from the Center for Constitutional Rights. The event will be moderated by Ahmad Abuznaid.
 
Register here. This webinar will be recorded and the recording will be shared a few days after the event on our website at: https://ifrfa.org/events. Follow us on Twitter at: @ifrfa.
 
Did you miss our Black to the Future event? You can watch the session here.