Although many developments in child pornography law are troubling, perhaps the most disconcerting is the growing number of cases in which children are being charged with violating child pornography laws for engaging in “sexting,” or sending sexually explicit photographs via cellular phones or over the Internet. Although the law implicitly considers children the victims of child pornography and the photographer and audience as punishable perpetrators, this logic is challenged by sexting cases. Yet in many instances, children who take and send “lascivious” pictures of themselves have been charged with violating the very law designed to protect them from the harms associated with child pornography. As a result, many scholars have recently decried the law as unjust and questioned its confusing motives. Existing scholarship has roundly criticized the situation’s ostensible absurdity, but little work has been done to understand the legal motives for charging juveniles in sexting cases. This Article endeavors to better understand the motivation behind the law’s perplexing stance on teenage sexting. A close analysis of recent sexting cases reveals a remarkable correlation between Freud’s theory of sexuality and sexting jurisprudence. Beginning with the first Supreme Court decision on child pornography, New York v. Ferber, subsequent Supreme Court and District Court decisions on child pornography and sexting have been based on a strikingly Freudian logic. Perhaps fittingly, the alignment with Freud is subconscious: no court has acknowledged that its decision rests on a reading of Freud. Yet, as this article shows, Freud offers an extraordinarily accurate theoretical account of what judges have done in recent sexting cases. Understanding sexting cases in light of Freud does more than just explain the bewildering decisions of state and federal courts to uphold convictions against children for violating child pornography laws. In light of this unexpected finding, this article also provides a new basis from which to assess the goals of the law. As prosecutors continue to bring charges against teenagers for sexting, this article offers judges an alternate model for thinking about these difficult cases. Moreover, as more state legislatures draft new rules governing teenage sexting—in 2012 thirteen states considered resolutions aimed at sexting—this article proposes that lawmakers either abandon or correct their subconscious Freudianism in sexting cases, offering suggestions about how better to deal with teenagers who sext.
Matthew H. Birkhold,
Freud on the Court: Re-interpreting Sexting & Child Pornography Laws,
23 Fordham Intell. Prop. Media & Ent. L.J. 897
Available at: https://ir.lawnet.fordham.edu/iplj/vol23/iss3/3