Sex, Cell Phones, Privacy, and the First Amendment: When Children Become Child Pornographers and the Lolita Effect Undermines the Law
Clay Calvert, 18 CommLaw Conspectus 1 (2009)
It is a sure-fire recipe for legal trouble: combine hormone-raging teens with image-transmitting technologies, and then stir them together in a sex-saturated society replete with outdated laws and a criminal justice system that never could have anticipated such a combustible confluence of forces. Signs and symptoms of this salacious problem are cropping up across the United States . . . This article has two primary goals. First, it attempts to identify and raise questions posed by sexting that might affect and influence how the law treats it. Second, it seeks to address these questions in ways that help to provide a framework for analyzing sexting cases that makes key distinctions between variations of the act of sexting that could (or should) impact a court or legislature’s treatment of it. However, it would be presumptuous to definitively answer all of these questions, given that the legal debate on sexting is only now beginning to emerge.
Part II of this article poses and addresses legal questions raised by sexting by embedding those queries within a larger, macro-level context of cultural and legal battles over sexuality, privacy, and media content. It also points out that some instances of sexting probably do not fall within the federal definition of child pornography, thus suggesting that much of the discussion today about treating sexting as child pornography may be overblown. Part III then synthesizes the questions and analysis set forth in Part II in order to provide a framework of key considerations for courts and legislative bodies to evaluate when determining how to address the issue of sexting.
