Sexting..... Can it be regulated?

There certainly has been a lot of talk lately about “sexting:” sending or receiving sexually explicit photos via cell phone. From working in the cell phone industry, to reading an article about it in People, to hearing a sermon about it and other moral issues on a church’s website that I listen to, I figure that this would make a nice blog. Personally, since the whole sexting thing became prevalent, I did not think too much of it. I thought it was pretty nasty that middle schoolers were doing it, but I did not think such a big deal of it- at Verizon you see all kinds of crazy stuff on people’s wallpapers on their phones all the time. But today I had a discussion with someone at work about this topic, and initially I argued that it is the sexter’s right to be able to text whatever they want. Then I remembered that the recent issues at hand dealt with minors, which, as discussed in class and on http://www.firstamendmentcenter.org/speech/studentexpression/overview.aspx, “do not possess the same level of constitutional rights as adults.” The person I was having a discussion with did not have knowledge of the specifics of the First Amendment, but he said that whether the child has the right or not is not the issue. The issue is that the images were of minors, and because they were explicit in nature, they are automatically considered child pornography, which is not legal in any situation. This is what many of the offenders are being charged with. According to David Rosen, author of “Sex Scandal America: Politics & the ritual of Public Shaming on http://www.counterpunch.org/rosen03252009.html, “participants [in sexting] can face felony child pornography charges.” Two teenage girls who took nude/semi nude photos of themselves, and texted them are facing charges of “manufacturing, disseminating, [and] possessing child pornography.” Rosen argues that “sexting makes everyone, including teenagers, pornographers.”

            But it is really child pornography to send, or have, a nude picture of yourself? According to Wikipedia.com, child pornography “refers to images or films depicting sexually explicit activities involving a child; as such, child pornography is a visual erecord of child sexual abuse.” Is a mere nude picture a depiction of a sexual act? In my opinion, (not that I think sexting is ok) no. If nude pictures not depicting any sexual act are considered porn, then what about all the pictures parents take of their newborns? What about art? There are paintings of partially nude/nude babies, and there are fountains depicting naked children. That’s just relating to children. What about Michelangelo’s “David?” Or the Greek paintings of naked adults, are those porn too because the subject is naked? These artists had a right to free expression, and being as these nude pictures really cannot be considered  child porn, they cannot be regulated by the Government. This is the statement the American Civil Liberties Union is trying to make. According to http://www.mtv.com/news/articles/1608142/20090331/story.jhtml, three teenage girls engaged in sexting, and they were brought to court to be prosecuted for child pornography. The ACLU stepped in claiming that the “images are not pornographic, and that they are protected as First Amendment speech.” The ACLU is arguing that the images are not porn, because they “do not constitute child pornography under Pennsylvania’s criminal code since they depict no sexual activity and do not display the public area of the girls” (http://blog.wired.com/27bstroke6/2009/03/aclu-sues-da-ov.html).

            So what about the First Amendment? If sexting nude pictures is not child pornography, then does being prosecuted for engaging in sexting infringe on the sexters First Amendment rights? The ACLU says yes: it “chills [the] First Amendment right of expression.” While the children might be able to get in trouble with their parents, or at school if the sexting was taking place at school, if the ‘sexts’ cannot be labeled as child porn, the Government has no reason to charge these teenagers. These issues are still being debated in court today, and it will be interesting to see the outcome. While I do feel bad for those who are hurt by sexting, like the case of the girl who killed herself because she was depressed and embarrassed from others seeing her nude sexts (http://www.msnbc.msn.com/id/29546030/), she knew what she was getting into. Text messages are easily forwarded, and if a teen is worried that others might view the text, other than who it was intended for, they should not send it at all. I can see how sexting can have moral issues, and I can see how it can be a problem for our society, but ultimately, I think it does infringe on First Amendment rights to punish it (unless it displays any kind of sexual act—then if done by a minor, I could be considered child porn). Plus, for those who do it without causing an uproar—for instance a girlfriend sends a sext to her boyfriend, and the texting line ends there, how are authorities going to punish that? How can you regulate sexting when much goes on every day; we just don’t hear about it? While not directly talking about this issue, in his Presidential campaign, President Obama spoke his stance on the First Amendment and media: “We know that with the pervasiveness of mass media today…it’s very difficult to regulate our way out of this problem. And for those of us who value our First Amendment freedoms…we wouldn’t want to” (http://www.counterpunch.org/rosen03252009.html) While sexting might be a silly and stupid concept, with possibly no redeeming value, I believe to regulate it infringes on First Amendment rights.