Do minors have a First Amendment right to take and distribute sexually explicit photos of themselves? The answer is no, according to a 6-3 ruling by the Washington State Supreme Court.
A 17-year-old in Spokane was charged with and convicted of “dealing in depictions of a minor engaged in sexually explicit conduct” under state law after he texted a picture of his erect genitalia to a 22-year-old woman. Arguing that the First Amendment guarantees his right to express himself by sending sexually explicit images of himself to others, he appealed to the Washington State Supreme Court after the appeals court affirmed the trial court’s decision.
Astonishingly, the ACLU and supposed children’s rights organizations Columbia Legal Services and TeamChild filed a brief to the court on behalf of the 17-year-old defendant. In their brief, the organizations argued that the court’s ruling would “jeopardize thousands of minors across the state by criminalizing increasingly common and normative adolescent behavior [using phones to distribute sexually explicit pictures of minors].”
To some extent, the ACLU and their friends are right. Children shouldn’t be forced to register as a sex offender simply because they voluntarily took pictures of their genitalia and consensually swapped it with someone from school (most of the time, law enforcement show no interest in pursuing such offenses). There exists a significant difference between an adult distributing pornographic images of minors, a high school boy sending pictures of his naked minor girlfriend to his friends, and a high school student texting lewd photos of him- or herself to someone he or she knows. Our state laws should be updated to reflect the growing phenomenon of sexting, a practice that wasn’t even technologically possible decades ago when these child pornography laws were enacted.
On the other hand, states have the legal authority and moral responsibility to criminalize the distribution of sexually explicit images of minors. It makes no difference that sexting has become “increasingly common and normative adolescent behavior.” That the practice is becoming increasingly prevalent is all the more reason to make clear that such behavior will not be tolerated.
Indeed, the same reasoning used by the ACLU and their friends is often also used by those who promote the distribution of birth control and prophylactics to high school students. “The kids are already having sex,” they say, “so we should ensure that they can have consequence-free safe sex.” But this logic was proven faulty by a study published this summer in The Journal of Health Economics showing that pregnancy rates fell by over 40% after cuts were made to contraceptive-based sexual education programs in England.
Minors who practice sexting are simultaneously engaging in distributing and possessing child pornography. Washington State has rightly criminalized this behavior. Although our laws should be modified to recognize the reality of voluntary consensual sexting among youths, we shouldn’t abandon the prohibition on (and penalties for) child pornography merely because more children are engaging in it. If anything, the sexting epidemic only proves that these laws are needed now more than ever.