Minors Should not be Charged with Felonies Due to Sexting

Introduction: Before I complete my rebuttal, I would like to clarify a key point regarding section B: My argument stands that sexting falls under the protection of the first amendment freedom of expression because it is not categorically excluded based on statutorily defined child pornography laws. I will assume my opponent his mistakenly used First Amendment rights rather than Child Pornography Laws in explaining my position in section B. However, if my opponent intended First Amendment rights, I will address that argument in subsequent rounds. Definitions: It is important to note that the exact definition of child pornography various from state to state. Simply defining "child" and "pornography" and putting those definitions together does not fully explain the elements of what constitutes child pornography. For the purposes of this debate, I will elude to the federal standard which criminalizes "any person who employs, uses, persuades, induces, entices or coerces any minor to engage in.. any sexually explicit conduct for the purpose of transmitting a live visual of such conduct. [2] I will concede to my opponent’s definitions of "pornography" and "sexting" but clarify that "child" is defined under the law as a person whom has not yet reached the age of maturity which, according to federal law, is age 18. First Amendment Protection: “Congress shall make no law.. abridging the freedom of speech.”[1] Despite the intrepid language, protections of the First Amendment are not absolute. Obscene speech lacks First Amendment protection because of its relative lack of value. The Miller court set forth the prevailing standard for determining whether a particular work amounts to obscenity: “the offense must be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have any serious, literary, artistic, political or scientific value.” Mind you, this is an incredibly high standard to meet. Almost anything can be considered artistic. A pose in a picture is an example. In New York v. Ferber, the court allowed states greater latitude in criminalizing the sale of child pornography and stated that it did not have to meet the Miller Obscenity standard in order to be outlawed. Ferber listed 5 reasons why child pornography did not warrant First Amendment Protection. My opponent has only focused on one of the elements, harm to the child, which according to Ferber falls within physical and psychological harm, sexual abuse, and exploitation of a child, [3]. Later cases clarified that depictions of nudity, without, more, constitute protected expression under the First Amendment Freedom of speech. [4] All three cases mentioned above have agreed that Child pornography law’s most important goal is to prevent the exploitation and abuse of children. As such, courts have been adamant that “where the speech is neither obscene nor the product of sexual abuse, it.. fall[s].. [within] the protection of the First Amendment.” [5] Child Pornography Laws: Although there may be subsequent harms from sexting images, “harm [that] does not necessarily flow from the speech but depends upon some unquantified potential for subsequent criminal act” [5] is outside the scope of child pornography statutes. Without a causal link to criminal activity, the images are protected by the First Amendment unless they are classified as obscene based on the Miller Standard. In order to ascertain whether sexting has First Amendment protection, it is necessary to determine if the images contain the same harms as child pornography articulated in the Ferber case: (i) physical and psychological harm, sexual abuse, and exploitation of a child. Due to the consensual nature of sexual acts and photographing those acts, it is difficult to apply the exploitation rationale behind child pornography laws. When an adult is involved with the creation of sexually explicit images of minors, there is an inherent power imbalance and money is more likely to be offered. None exists in sexting cases. Further, using the federal statute cited to above implies that the act requires a minimum of two people: the “any person” and the “any minor”. How can one use, persuade, induce, entice or coerce oneself? If child pornography statues are meant to protect minors from abuse by others, then the statutes do not apply to minors who voluntarily make and send their own nude and semi-nude pictures to others. One’s “autopornography” (documenting one’s own legal sexual conduct and nudity) does not involve exploitation of the self nor does it allow for the two person interaction as implied in the federal statute. Punishment: My opponent stated that punishment for minors should be different than adults. Unfortunately, sexting images created by minors for minors are considered child pornography whereas adults who sext one another are protected under the first amendment freedom of expression. My opponents argument does not stand because children who commit murder are charged with the same crime as adults whereas with sexts, children are charged far harsher than adults for the same crime. Rape is a similar example. What is being punished in rape and murder is the action of the of the minor, what is being punished with sexting is the age of the sextor. [1] U.S. Const. amend.I. [2] 18 u.s.c. 2252 [3] 458 U.S. 747 (1982) [4] Osborne v. Ohio, 495, U.S. 103, 108 (1990). [5] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002).