Taking it easy on teen pornographers: states respond to minors' sexting.

• Author: Patel, Ronak

Cite as 13 J. High Tech. L. 574

1. Introduction

   Cell phones have become a staple in the American teenager's everyday life. (1) Adolescents today cannot recall a world without cell phones and texting, and it has become a priority form of communication. (2) In 2009, seventy-one percent of American teens between twelve and seventeen owned cell phones. (3) Furthermore, a 2009 study conducted by the Pew Internet & American Life Project found that twenty-five percent of teens aged twelve through fourteen text daily, and fifty-one percent of teens aged fifteen to seventeen text daily. (4) The constant use of cell phones has not only been a reliable source of communication for young teenagers, but also, an outlet for them to express their sexual identity. (5)

   "Sexting" evolved from adolescents' need to explore their sexuality and the rise in technology that allows them to build sexual relationships via private photographs. (6) Sexting has been defined as "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs via cell phones or over the Internet." (7) Recently young adolescents have turned to sexting as form of sexual enticement. (8) In 2008, The National Campaign to Prevent Teen and Unplanned Pregnancy concluded that one in five teenagers has "electronically sent, or posted online, nude or semi-nude pictures or video of themselves." (9) In 2009, a survey conducted by Cox Communications revealed that nineteen percent of teens from ages thirteen to eighteen engaged in sexting. (10) Even though sexting is a private act among teenagers, there are severe legal consequences to sending such photographs. (11)

   The rise in teen sexting has led to an increase in claims against minors for child pornography. (12) With states not having statutes addressing teenage sexting prior to 2009, prosecutors used traditional child pornography laws to deal with minors who engaged in sexting. (13) Moreover, depending on the state in which they lived, minors ran the risk of being placed on the state's sex offender registry. (14) Recognizing that penalties against minors for sexting were too severe, states in 2009 began implementing laws that addressed sexting and provided penalties that would not seriously affect a minor's future. (15) There are a few states, however, that have decided to address teen sexting while still leaving the door open for minors to be prosecuted under state child pornography laws and to become registered sex offenders. (16) Regardless of the varying approaches taken by states, their response to the teen sexting issue may have recently impacted adolescents' views on sexting for the better. (17)

   This Note will first examine the history of child pornography laws and their eventual affect on teen sexting cases. Second, the Note will introduce the states that have implemented laws in response to the rising number of teen sexting incidents and the current state of teen sexting. Third, the Note will compare and contrast the differences between penalties enforced by the states from the most severe approaches to the states that are more lenient towards sexting minors. Finally, the Note will assess the possible impact these states' laws have had on mitigating the teen sexting issue.

2. History of U.S. Child Pornography Laws

   The history of child pornography laws can be traced back to 1977 and the Protection of Children Against Sexual Exploitation Act. (18) The Act was implemented to criminalize the act of forcing a child to engage in sexual conduct in order to create a visual depiction that would be distributed through interstate commerce. (19) However, the Act was not widely used, and only one person was convicted under the statute. (20)

   The issue of child pornography was amplified in the 1982 case of New York v. Ferber (21) In Ferber, an adult bookstore owner was convicted under a New York statute that prohibits promoting and distributing material that depicts a child under the age of 16 engaging in a sexual performance. (22) The U.S. Supreme Court determined that child pornography was not obscene under the Miller test, yet was concerned with the exploitation of children, stating, "the use of children as subjects of pornographic materials is harmful to the physiological, emotion, and mental health of the child." In upholding New York's child pornography statute, the Court in Ferber linked the distribution of photographs that contained children engaging in sexual activity to the sexual abuse of children. (24) According to the Court, the critical issue always has been "whether a child has been physically or psychologically harmed in the production of the work." (25) The Court determined that the only way to effectively control the production of material which requires sexual exploitation of children was to regulate the distribution network of child pornography. (26)

   Using the holding set out in Ferber, Congress passed the Child Protection Act of 1984. (27) The Act followed the reasoning in Ferber and prohibited the distribution, production, or possession of child pornography. (28) In addition, the Act limited the work only to material that visually depicted children engaging in sexual behavior. (29) In 1986, Congress expanded how it wanted to tackle child pornography with the Child Sexual Abuse and Pornography Act and Child Abuse Victims' Rights Act. (30) These Acts, prohibited advertisements of child pornography and subjected pornographers to liability for injuries suffered by child models. (31) Congress went another step further in 1988 with The Child Protection and Obscenity Enforcement Act, which prohibited using computers to distribute child pornography. (32)

   In 1990, the Supreme Court faced another child pornography issue in Osborne v. Ohio. (33) An Ohio man was prosecuted for violating an Ohio law that made the possession of child pornography illegal. (34) The Court upheld the ruling in Ferber, and extended it by holding that the Ohio law was valid in its attempt to ban possession of child pornography in the interest of preventing child abuse. (35) Although people have a First Amendment right to possess child pornography, the Court explained that the intent behind Ohio's law was to protect the victims of child pornography. (36) Agreeing with the reasoning established in Ferber, the Court concluded that Ohio had a compelling interest in the "physical and psychological welfare of a minor" and is allowed to enact laws that further that interest. (37)

   Before 1996, Ferber and Osborne were the standard to what was considered Child Pornography. (38) In 1996, Congress enacted the Child Pornography Protection Act (CPPA) to expand on what was already established in Ferber and Osborne. (39) The CPPA regulates "virtual" child pornography. (40) Virtual child pornography can take many forms and can include a scanned picture of a real child, that is manipulated by a computer to create a sexually oriented photo. (41) Lawmakers wished to keep pace with technological advancements that made it possible for child pornographers to modify pictures of innocent children and create an image that puts the children in sexually suggestive situations. (42) With the statute in place, child pornography at the time was defined as:

   [A]ny visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.... (43) Congress believed the statute was broad enough to prevent underground child pornography, the major source, and deprive child pornographers of a "criminal tool"--virtual pornography--which promoted child abuse. (44)

   In 2002, however, the Supreme Court found in Ashcroft v. Free Speech Coalition that part of the CPPA was overbroad. (45) The Free Speech Coalition, an adult entertainment trade association, challenged the CPPA. (46) The Coalition specifically challenged the provisions prohibiting images that "appear to be" minors engaged in sexual activity, and speech that "conveys the impression" that minors are engaging in sexual conduct. (47) The Coalition believed the provisions were overbroad and violated speech that would otherwise be protected under the First Amendment. (48) The Supreme Court once again linked the abuse of children to the validity of laws prohibiting child pornography by stating, "[w]here the images are themselves the product of child abuse ... the State had an interest in stamping it out without regard to any judgment about its content." (49) The Supreme Court believed that Ferber's interpretation of "child pornography was based upon how it was made, not on what it communicated." (50) In addition, the CPPA goes beyond Ferber, as it criminalizes work that does not actually use real children. (51)

   The Supreme Court agreed with the Free Speech Coalition in finding certain CPPA provisions to be overbroad because virtual child pornography is not related to the sexual abuse of real child pornography. (52) Moreover, the threat of future harm from the potential circulation of a photo, either through phones or the Internet, cannot serve as a proper rationale for finding such a statute, or its use, constitutional. (53)

   With the CPPA faltering in Free Speech Coalition, President George W. Bush enacted the Prosecutorial Remedies...