Sexting

John Humbach's paper on ''Sexting' and the First Amendment' offers a US perspective on the phenomenon of minors using mobile phones to take, view and distribute what are deemed to be intimate photos of themselves or others.

The term 'sexting' derives from texting, ie SMS. The activity is facilitated by the roll-out of 3G networks and consumer uptake of MMS, along with the proliferation of mobile phones ... now increasingly held by K12 students, often in response to parental fears about strangers and perceptions that a mobile will provide a digital lifejacket for vulnerable kids. Data about the incidence and seriousness of sexting is at best problematical, with questions about the accuracy of a handful of surveys or extrapolation from reported abuses and lack of capacity on the part of telecommunication service providers to monitor and report on what happy snaps are being generated/disseminated by kids.

In Australia and overseas the phenomenon has been reflected in

+ calls for special anti-sexting law and for measures such as child protection orders;
+ something approaching a moral panic among the mass media, parts of officialdom and advocacy groups;
+ perceptions that any image of an unclothed or partly-clothed minor is necessarily 'sexualised' and thus deserving criminal sanctions, evident in the furore discussed in David Marr's The Henson Case (Scribe, 2008);
+ ad hominem attacks on analysts such as Peter Cumming who have urged a nuanced and fact-based response to popular anxieties and institutional legitimation; and
+ debate about the appropriateness of action under existing child pornography or other criminal law.

The latter is of particular concern in regimes that fail to discriminate between naive 'naughtiness' on the part of 12 or 16 year olds and exploitation of minors by adults, eg where any conviction results in placement on a lifetime - and publicly-accessible - sex offender register.

Humbach argues that

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

Those contradictions in Australia are currently being explored by a UC Law Honours student.

Humbach considers sexting in relation to US First Amendment protection for expression, broader than that in Australia where the High Court has found a limited right of political communication under the Constitution but moved to freeing most expression.

Humbach comments that

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative.

He notes that

Ashcroft strongly implies that the exclusion of free speech protection should be limited to materials "produced by means of criminal child abuse and exploitation" and suggests that current standards of strict scrutiny for content-based regulation "would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion".

He notes that "how this issue will be decided, however, remains to be seen". The same might be said of Australia, where media coverage of sexting and warnings by bodies such as the NSW Education Department have outweighed actual prosecutions of minors.