Child pornography laws are meant to prevent the sexual abuse of children necessarily which is necessarily present in the possession of child pornography. In Wisconsin, the relevant ‘child pornography’ statute, Wis. Stat. § 948.12, seeks to criminalize someone who "possesses or accesses in any way with intent to view any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct." WIS JI-CRIMINAL 2146A CHILD PORNOGRAPHY: POSSESSION OF OR ACCESSING A RECORDING — § 948.12(1m). In footnote viii to that jury instruction, it is explained that pursuant to State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676 (1991), " [M]ere nudity is not enough —the pictures must display the child's genital area . . . the photographs must be sexually suggestive; and . . . the jurors may use common sense to determine whether the photographs were lewd."
Prosecuting two juveniles for sexting each other represents a prosecution based upon mere nudity with no exploitative element in violation of Petrone. Sexting is the digital adolescent self expression without the exploitative sexually suggestive circumstances that are implicit in the production of conventional child pornography. Sexting entails the subject taking a photograph of him/herself, or voluntarily asking a friend to take the photograph for him/her, and therefore lacks the exploitative element implicit in the laws prohibiting child pornography. To charge sexting as child pornography, a prosecutor must blatantly disregard the obvious purpose and intent of the laws enacted to protect children from those who would exploit them. Sexting may not be the best way society wants juveniles to explore their sexuality so some form of therapy pursuant to a deferred prosecution is appropriate. The draconian response of seeking a juvenile delinquency conviction (which may or may not involve juvenile sex registration) is not appropriate.
Moreover, sexting between two children does not implicate the compelling child protection justification prompting criminalization of child pornography. Legislatures and courts stress the harm that minors suffer when they are used in the creation of pornographic material, yet it is precisely this exploitative harm that is absent from the sexting scenario here in which an adolescent voluntarily takes a photograph of herself (or asks another to do so) and shares the photograph with a boyfriend. It should be noted this case does not represent any involvement of an adult using the pictures for sexually suggestive purposes. Nor does this case does not implicate the possible prosecution of anyone who widely disseminates a sext-message on social media such as Facebook, Instagram, etc.
The United States Supreme Court emphasized the harm to the “physiological, emotional, and mental health of the child” when categorically exempting child pornography from the First Amendment protection that adult pornography receives. New York v. Ferber, 458 U.S. 747, 758 (1982); U.S. v. Goff, 501 F.3d 250, 259 (3d Cir. 2007)(citing Ferber for the harm caused to children in child pornography). The Court has stated the reason possession of child pornography is prohibited is to “protect the victims of child pornography . . . to destroy [the] market for the exploitative use of children.” Osborne v. Ohio, 495 U.S. 103, 109 (1990) (emphasis added).
In Ashcroft v. Free Speech Coalition, the Court reaffirmed that it is the harm to children used in the production of child pornography that is the root of the Ferber exception. 535 U.S. 234, 241-42 (2002); see Stephen F. Smith, Jail for Juvenile Child Pornographers?: A Reply to Professor Leary, 15 Va. J. Soc. Pol’y & L. 505, 519 (2008). In Free Speech Coalition, the Court rejected arguments supporting the prohibition of pornography that uses “virtual” children or adults who appear to be minors, as inconsistent with Ferber’s child protection justification. Free Speech Coalition, 535 U.S. at 249. The government argued that though no children were sexually abused in the making of the images, there remained a potential harm to children based on the possibility that the images might cause pedophiles to molest children or be used by pedophiles to groom children. Id. at 251-52. The Court dismissed this as “indirect” because the harm “does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” Id. at 250, 253. The Court characterized the interests in prohibiting child pornography as “anchored . . . in the concern for the participants [in the production], . . . the ‘victims of child pornography.’” Id. at 250 (quoting Osborne, 495 U.S. at 110) (emphasis added).
In the practice of sexting, there are no exploited victims as there are in conventional child pornography – the youth voluntarily take and share text message photographs of themselves with their peers – and any prospective harm to youth would be “indirect” injury and dependent on “unquantified potential for subsequent criminal acts,” and therefore squarely outside the Ferber exception to First Amendment protection.