Sexting & Child Pornography Prosecutions Hypo 1 – Consensual sex between teen couple who send pictures/video of sexually explicit conduct to each other between phones. Phone lost; found by school administrator & turned over to prosecutor Hypo 2 – Sexually explicit photos of two teen girls and 1 teen boy traded among the three. Girls also post the photos on a website with the phrase “look at our awesome bods” without the boy’s consent. Website is set to private but several people still see. These photos meet the definition of child pornography and could be prosecuted under exploitation or promotion of child pornography laws. But does prosecuting them fit within the policy reasons for why we think child pornography is unprotected?

Sexting statutes Arizona: Minor under 18 guilty of petty offense if knowingly or intentionally uses electronic communication device to transmit/display a sexually explicit depiction of a minor to one other minor. If sent to more than one person, criminal offense increases Generally no prosecution if minor did not solicit the image, takes reasonable steps to destroy the image, reports transmission to certain adults AND, does not forward the message Under Missouri law it is a Class A misdemeanor for a minor to possess or distribute sexually explicit images of a minor, if it is the minor’s first offense. A Class A misdemeanor is punishable by up to 1 year in jail and $1,000. If a minor is caught possessing or distributing a sexually explicit image of a minor a second time, the crime is increased to a Class D felony, which is punishable by up to 4 years in jail and a fine of up to $5,000.

Hypothetical No. 3 Faith is apparently raped while incapacitated at a party after having had a significant amount of alcohol to drink. She has a somewhat fuzzy memory of the events that took place but believes that the encounter with high school classmate George was non-consensual. Video appears on a website showing that Faith & George did have a sexual encounter the night of the party and that George had friends post the video of the encounter in order to brag. Much of the video confirms Faith’s story. Can/should the prosecutor charge George with violating the Ohio laws? Are the sexting laws a better approach? Some other approach? ◦Note that this starts to shade into similar situations as revenge porn although most revenge porn involves consensual taking of photos and non-consensual posting.

Revenge Porn and the 1 st Amendment Section : ◦Purports to protect privacy of intimate information Does Florida Star (which involves a variation on the tort of disclosure of private information) allow punishment of this type of information consistent with 1A? ◦Are there differences in that case and this situation? Did SCT there rule out recognition of or criminal punishment based on the tort in all circumstances? ◦Do what extent does the fact that BOTH participants consented to the original filming mean each has control/ownership over the pics? ◦What if the material uploaded included a video of BOTH of them? Would that change the equation?

More Questions about Revenge Porn and the 1st Amendment What other concerns does Section raise from a 1 st Amendment perspective? ◦Vague? ◦Overinclusive? Underinclusive? Is this statute better? ◦An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.

Invasion of Privacy Tort Option  Anna could possibly bring an invasion of privacy tort suit against Blake – Florida Star didn’t rule that the 1A barred individual suits between private citizens when non-newsworthy information is involved.  Florida Star was primarily concerned with ensuring that newspapers that came across arguably newsworthy private information in a legal manner were not punished by law criminalizing or imposed damages for such action per se. Tort of public disclosure of private facts arises when a person reveals information that is not of public concern where the release of info would offend a reasonable person. ◦Multiple ways to defeat the tort claim: ◦Newsworthiness. - the information is of legitimate public concern ◦Consent - P consented in some way to publication ◦Publication doesn't outrage community notions of decency; not offensive to a reasonable person ◦Event took place in public/P hasn’t really kept facts private