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Unpublished Paper
Sext Appeals: Re-Assessing the Exclusion of Self-Created Images from First Amendment Protection
ExpressO (2011)
  • Carmen Naso, Mr, Case Western Reserve University
Abstract
ABSTRACT Only recently could it have been imagined that in less than a minute, a young person could or would create, and possess a sexually explicit photo of him or herself and then send it to hundreds of recipients throughout the country. Nor could one think of web cam chats or phone conversations that would result in spontaneous exhibitions of nudity via the computer or 4th generation cellular technology. Novel to this discussion, this article identifies a solution to the inconsistent and problematic application of individual state law to speech that can be created and globally disseminated in a matter of seconds by a ten-year old. More than half of the states have enacted or are in the process of creating new laws that exempt juveniles from traditional child porn prosecutions. Where these efforts are directed toward prohibiting the use of digital technology that is integral to criminal conduct then they will be within the reach of Supreme Court boundaries on the limit to free speech. Where they merely soften or re-state traditional child porn law criminalizing the depiction of lawful conduct, they will not address the conflict that innovation in communication has created in the application of the First Amendment. The most recent First Amendment decisions clearly empower expression to and among juveniles, and decrease the government’s power to regulate the content of speech. Though this article exclusively identifies the types of crimes to prosecute, its primary goal is to offer a solution whereby much of this self-created, consensual imagery, currently subject to criminal prosecution, becomes protected speech unless it is proximately linked to other criminal activity. As such, many prosecutions and convictions under existing child porn statutes are doomed as exceeding the limits of constitutional regulation. New or amended statutes, which merely rename existing laws, will suffer the same fate and for the same reasons. Technological developments have made it easier to create or disseminate this imagery and thereby expand the field of production and distribution of sexually explicit images to anyone old enough to operate a cell phone or a computer. Re-evaluation of the paradigm will enable us to realistically distinguish between child porn and child play.
Keywords
  • sexting child pornography expression
Disciplines
Publication Date
August 17, 2011
Citation Information
Carmen Naso. "Sext Appeals: Re-Assessing the Exclusion of Self-Created Images from First Amendment Protection" ExpressO (2011)
Available at: http://works.bepress.com/carmen_naso/1/