Exploring the First Amendment Rights of Teens in Relationship to Sexting and Censorship

This Article explores child pornography law in relation to teen sexting conduct. Recently, some teens who engaged in teen sexting have been convicted under child pornography laws and have been required to register as sexual predators. The criminalization of teens for developmentally typical behavior, mimicking the conduct of adults, can result in grave harm to most teens. Furthermore, the application of child pornography laws to teen sexting conduct demonstrates the constitutional overbreadth of the current definition of child pornography. Photographs have an emblematic role in society-capturing and celebrating youth. Moreover, the creation of teen sexting images accompanies a teen’s developmental quest for a sexual identity and individuation. Thus, teen sexting images constitute teen sexual speech and are entitled to some degree of constitutional protection, so long as the images are not obscene. The variable obscenity standard of Ginsberg v. New York has since been modified by the Bellotti v. Baird strict scrutiny standard. Thus, any legislation related to teen sexual speech must be narrowly tailored to protect the minor from harm, or further another compelling state interest. This Article tests the author’s proposed teen sexting legislation under the Bellotti test.