In New York v Ferber, the Supreme Court unanimously held that the First Amendment right to free speech does not prevent states from restricting the distribution of child pornography. Indeed, in this uncontroversial decision the Supreme Court held that the “psychological, emotional, and mental health of the child” is of such paramount importance that child pornography need not even be deemed obscene per the test established in Miller v California for regulation to be justified. Public sentiment favoring child pornography laws as applied to adult predators remains strong. Indeed, public sentiment on the issue is so strong that a “my cat did it” defense can seem more likely to succeed than challenging that the behavior is wrong. More controversial however has been the recent application of child pornography laws to protect children from themselves.
Public awareness of “sexting” can perhaps be traced back to the infamous “Swiffer Girl” incident, which involved an eighth grade girl at the Horace Mann School in New York City. The girl filmed herself in three videos engaged in a variety of sexual acts with a Swiffer mop and sent them to a male classmate on whom she had a crush to show him what he was missing. Her classmate, more amused than stimulated by the videos, proceeded to forward the videos to his friends and soon the videos had spread like wildfire, first among the private school elite of New York City and then eventually nationally. The drama that ensued was so severe that the girl was forced to drop out of Horace Mann and move to Florida.
While “Swiffergate” as it became known should have been sufficient evidence of the dangers of “sexting” it seemingly had no such effect. Indeed, according to a survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy, one in five teenagers indicated that they have sent or posted naked pictures of themselves. While various educational campaigns such as “Think Before You Click” have been created, police in Greensburg, PA and other localities have taken matters into their own hands and charged teenagers with crimes under the very same child pornography laws meant to protect them. Indeed, while Rick Salomon did not violate any pornography laws by releasing 1 Night in Paris (he did perhaps violate other laws as evidenced by Paris Hilton’s successful civil suit), a child who distributes videos or photographs of sexual acts involving other children can technically be charged as having violated child pornography laws. Interestingly however, the public reaction has been decidedly against this application of child pornography laws.
Despite public opposition, certain applications of child pornography laws to charge children are consistent with both the letter and the spirit of the laws. The “spirit” of child pornography laws that punish dissemination and possession is to protect the child depicted in the pornography (the “victim”) by punishing the distributor or possessor (the “offender”). The application of child pornography laws in the Greensburg, PA case was inconsistent with the “spirit” of the law insofar as it punished, rather than protected, the “victim” creating a sort of “double-victimization” akin to charging runaway children forced into the sex industry with prostitution. Similarly, charging the boyfriends with possession did nothing to protect the “victim” insofar as there was no evidence that they were active instigators, rather than passive recipients. While it is difficult to establish a brightline standard, charging children who have sent a couple of photos of themselves to a couple of people with disseminating child pornography does not make sense.
The application of child pornography laws against children can however be consistent with both the letter and spirit of the law as in the case of Philip Albert of Orlando, Florida. In this case, Albert, after breaking up with his girlfriend, decided to get back at her by maliciously mass e-mailing photos she had “sexted” him. Punishing Albert (the “offender”) is clearly consistent with the objective of protecting his ex-girlfriend (the “victim”). While his ex-girlfriend undoubtedly put herself in a compromising position by “sexting” in the first place, this does not excuse Albert’s behavior any more than a mugger’s behavior would be excused by the fact that his victim opted to take a stroll in a dangerous part of town late at night. Similarly, the fact that Albert is himself a child does not excuse the behavior insofar as we punish children all the time for violating the law (though it might warrant some leniency).
While we should undoubtedly continue campaigns to educate children, so they don’t put themselves in compromising situations in the first place, punishing children who maliciously disseminate child pornography is justifiable as well. Indeed, in the spirit of protecting the victim, charging children who maliciously disseminate child pornography is necessary. If the law were applied as such, “Swiffer Girl’s” crush may have thought more carefully before maliciously forwarding the videos and “Swiffergate” may have been a private learning opportunity, rather than a national life destroying event.