Minors Should not be Charged with Felonies Due to Sexting

A. First Amendment Protection re: the Miller Standard 1. Burden of Proof My opponent argues that the sexted image, taken as a whole, appeals to the prurient interest in sex. However, as I mentioned in previous rounds, the obscenity standard as it applies to First amendment protection is a difficult burden for the Con side to meet. Due to the high scrutiny that courts routinely prescribe onto legislation that attempts to restrict speech, the burden to show that sexting meets a prurient interest in sex lays with the Con rather than the Pro. “In order for the government to prosecute an individual based upon an allegedly obscene depiction of sexual conduct without violating the first Amendment, 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." [1] Courts have routinely required the prosecution, in this case, the Con, to validate that specific work amounts to obscenity prior to switching the burden onto the defendant, in this case the Pro. As such, the Con has reputable presumption to showcase why sexted images fall within obscenity prior to a switch in the burden of proof. 2. Prurient interest in sex In the interest of defending my position, I appeal to the Con to show how semi-nude or nude pictures or teens are any different from nude baby pictures to warrant a prurient interest in sex. Both are children, both showcase genitalia, both routinely smile. Further, without an in depth analysis into individual sexted images, I implore the con to explain why images of teens in bras and/or panties are obscene whereas a teen in a two piece bathing suit does not appeal to the prurient interest in sex. Per the mutually agreed to definition of sexting, nude or semi-nude images fall within the realm of sexting. And yes, girls in their bras without showcasing genitalia have been prosecuted under child pornography laws. [2] 3. Artistic value As to the third requirement of Miller, I stated in the first round that photography and posing is relevant to artistic value. Again, the burden of proof rests on the Con to show why these images are NOT artistic per court scrutiny and the rebutable presumption standard. As mentioned above, courts maintain a rebutable presumption on the Con that all speech is protected by the first amendment until proven to be obscene. Only then does the burden shift. 4. Patently offensive My opponent would like you to believe that "all states, and federal law, has a ban on images portraying children having sex or posting in sexually explicit ways" and thus is considered patently offensive. Unfortunately, this statement, to put mildly, simply false. Images that do not use actual children, such as digital pornography, adults posting as children, or actual child faces being placed on digital pornographic bodies, fall within the protection of the first amendment. [2] If digital child pornography is deemed to fall under first amendment protection, clearly it is not patently offensive to warrant it obscene. B. Re: Child pornography After successfully rebutting my opponents false claims on first amendment freedom of speech, I return this debate to its original question: Does sexting fall within the realm of child pornography as defined by statute. a. distributing pornography. My opponent is correct that children cannot distribute pornography based on a state interest in protecting minors from materials that the state deems harmful. However, this statement is irrelevant to the question at hand. Many states allow consensual sex between minors, or have laws allowing minors to engage in consensual sex within a certain age range. The punishment of sexting is not the act, it is the documentation of an allegedly "sexual" act. b. coercion: My opponent is also correct that minors are able to coerce and exploit each other. However, as I stated in previous rounds, the statute is concerned with "any person" coercing "any minor". Unless a minor "coerces" another to take sexting photos, the actions do not fall within the statute because the photographs is taken by the child itself without another individual being in the room. To be quite frank, comparing a nude picture of oneself to voluntary prostitution is a bit hyperbolic for the purposes of this debate. As mentioned in previous rounds, the purposes of child pornography statutes is to the protect minors from adult exploitation. This purposes has been quite clearly stated in the Ferber, Free speech, and Osborne cases which are the primary authority in child pornography precedent [3]. In sexting cases, images are produced for minors, by minors without any coercion or power imbalance that is analogous to the adult exploitation of children. My opponent refereed to the exploitation of a girl who prostitutes in order to purchase drugs as exploiting herself. I am having difficulty understanding how she is "exploiting her body". In any case, self exploitation was not the statutory intent of the law nor does it allow for such examples to be used in warranting such a distinction. The statue speaks of a minimum of two people: "any person" and "any minor" which makes the previous argument lack merit in respect to this debate. C. Adult sexting to child sexting: The purpose of bringing this section to the forefront of this debate was a direct rebuttal to my opponents argument that a child who commits murder should be charged with murder because adults are charged with murder. I agree that this is an irrevelant segment of the arguments put forth and perhaps better saved for future debates. Further, I am not aware of the "proper license" my opponent refers to in creating and distributing pornography. My research concludes the pornography falls within protected speech with or without license. Without any authority to understand what he was alluding to, I cannot respond to this comment. [1] 77 Tenn. L. Rev. 1, 9. [2] Ashcroft v. Free Speech Coalition, 535, U.S. 234, 249 (2002). [3] Osborne v. Ohio, 495, U.S. 103, 108 (1990).