Sexting is a new twist on the timeless desire of teens and adults to engage in sexual expression.
For example, individuals who are dating might send each other nude pictures.
Because, however, the pictures involved in sexting are digital, it is easy for recipients to distribute them in ways that the original sender never intended or imagined.
Far too common is the case where jilted former lovers have sent nude pictures of their exes after a bad break-up to classmates, friends, coworkers and relatives.
At that point sexting is neither consensual nor innocuous.
One may have any number of personal objections to sexting, but as long as sexted images are taken voluntarily and shared consenually, it is none of the government’s business.
A couple should be able to intimately share naked pictures of each other if they so choose.
Sexting among adults is unquestionably protected expression under the First Amendment.
For minors, unfortunately, sexting is an entirely different matter.
Child pornography laws, originally designed to protect children against adult predators, inadvertently criminalize both consensual and non-consensual sexting where the person in the photo is under 18. One cannot understate the severity of these penalties when applied to the very minors the law was intended to protect from exploitation.
Because the child pornography laws were not intended to address sexting, the legal consequences for teens engaging in sexting are truly bizarre.
Devoted partners sharing an intimate photograph face the same punishment as a bully who maliciously sends a naked picture of an ex to the entire school.