Josh Goodman is a former staff writer for GOVERNING..E-mail: firstname.lastname@example.org
With today's cellphones' multimedia messaging abilities, where do we draw the line?
Sexting is a source of angst for parents and public schools. But should it be a crime?
That's the question that, almost overnight, state after state is confronting. Modern cell phones make it easy to send pictures, and a study by the National Campaign to Prevent Teen and Unplanned Pregnancy indicated that 20 percent of teens reported sending nude or semi-nude images.
Sexting comes with real concerns: Teens often send the photos to a boyfriend or girlfriend, but the images can quickly go viral, spreading to the Internet or strangers' cell phones. Several suicides have been linked to sexting.
Despite concerns, there's a debate over how--or whether--law enforcement should handle the problem. State laws on child pornography weren't written with sexting in mind. Still, some prosecutors have interpreted the laws to mean that sexting is a felony sex crime, even when teenagers send photos of themselves.
Most lawmakers believe treating sexters like child pornographers goes too far, and results in bills like the one state Rep. Seth Grove is proposing in Pennsylvania--where teens convicted of sending nude photos would face misdemeanor charges. They'd have to perform community service and attend an educational program, but wouldn't be subject to jail time. Grove thinks this approach strikes the right balance between sending the message that sexting is serious, and acknowledging that many teens do it without malicious motives. "It definitely shouldn't be a felony offense," Grove says. "We don't want to ruin their lives." Around 10 states are contemplating similar legislation.
Grove's bill seems to be gaining support in the Legislature, but has found an adversary in the American Civil Liberties Union (ACLU), which argues that Grove's approach is still too punitive. "The idea of putting 20 percent of Pennsylvania's teenagers into the criminal justice system," says Andy Hoover, legislative director of the Pennsylvania chapter of the ACLU "is a terrible idea."
Hoover think when teenagers send photos via cell phone, they're engaging in a protected form of free speech, even if the photos contain some nudity. Only truly sexually explicit images aren't covered by the First Amendment, he says. That view is being tested in a much-watched federal court case out of Wyoming County, Pa. In that case, the ACLU sued after a district attorney threatened to charge accused sexters with felonies if they didn't attend a class about the dangers of sexting.
What's clear is that the policy debate over sexting is just beginning. If the current crop of laws proves unconstitutional or unworkable, lawmakers will have to refine their approach. "It shows," Grove says, "how technology has passed our laws."
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