Kids will be kids, but ‘sexting’ may lead to federal child pornography charges and sex offender registration for the nation’s youth.  ‘Sexting’ is a growing phenomenon among adolescents:  equipped with cell phones and teenage dreams, adolescents ‘sext’ when they take nude or semi-nude photographs and text or email them to friends or significant others.  A recent duo of NY Times articles reveals the devastating consequences that high schoolers in Washington faced after one such ‘sexted’ photograph went viral, and how state legislatures are responding.  Those articles are available here and here.  It is well settled in First Amendment jurisprudence that adults may freely trade sexually charged images without fear of censorship.  See Miller v. California 413 U.S. 15 (1973). When it comes to minors, however, the Supreme Court has been clear that preventing sexual abuse of children categorically trumps the First Amendment in the world of child pornography. See New York v. Ferber 485 U.S. 747 (1982). Still, as technology advances and social networking continues to lower the privacy qualms of savvy teens, important balancing questions arise as to the extent to which we are willing to protect speech, even explicit speech, between minors, and the extent to which we want to protect children from their immaturity and from the predators in whose hands ‘sexted’ photographs could fall.


Written by

The Harvard Civil Rights-Civil Liberties Law Review (CR-CL) is the nation’s leading progressive law journal. Founded in 1966 as an instrument to advance personal freedoms and human dignities, CR-CL seeks to catalyze progressive thought and dialogue through publishing innovative legal scholarship and from various perspectives and in diverse fields of study.

Latest comments
  • Great article! It is quite a scary situation with our teens. It is difficult as a parent to provide them some level of independence and privacy while still monitoring their activities.

  • Great article Laura and one which I will forward along.

  • There is also the question of nudist children. Simple nudity is not sexual, no more than unveiled faces; it is the situation that makes it sexual. Should a child wearing provacative make-up be prosecuted for sending a photo of herself? Should a nudist child, or any child, be prosecuted for sending a non-sexual picture of herself or himself nude? Maybe splashing about nude at a lake?

  • Excellent article…and on a relevant and frightening subject indeed.

  • Such an important topic for privacy rights in light of evolving technology. I think a key question to ask revolves around which branch we deem as more appropriate to weigh these important considerations: the courts or Congress? Could Congress feasibly create a regulatory scheme that would protect the privacy of adults’ legit freedoms to sext at-will while keeping kids safe? Or should the courts continue to awkwardly squeeze policy questions re technology (something many may just not even understand) into fixed categories of 1st Amendment law cited above or 4th Amendment “reasonable expectation of privacy” jurisprudence?

    Maybe the question instead is: where are the parents and what role should they play as disciplinarians and cell/internet bill payors?