A long while back, amidst a freewheeling discussion of the regulation of indecency, obscenity and child pornography, a friend wondered aloud whether -- since, unlike adult pornograhy, the mere private possession of child pornography is constitutionally punishable -- teenage sweethearts who playfully photograph themselves or one another in the buff can be prosecuted, despite themselves being the ostensible victims. I thought this was a pretty good question, but not one that was very likely to be litigated.
Boy, was I wrong. It happened, in 2005, in Florida. And in January it was upheld on appeal against a challenge under the explicit right to privacy in Florida's constitution. The case is A.H. v. State, Case no. 1D06-0162 (Fla. App. 1 Dist. 2007).
A dissenting justice in A.H. emphasized a prior Florida Supreme Court decision holding unconstitutional the prosecution of a minor for having sex with another willing minor - a case the majority brushed aside. (They instead emphasized a precedent upholding a minor's conviction for making a sex tape with a minor partner and showing it to a third party.) Interestingly, the dissenter focuses on the question of whether a minor's "reasonable expectation of privacy" in their sexual conduct (remember, Florida's privacy right is broader than the federal one) extends to images of that conduct, without reaching the question of whether the state was justified in infringing upon that interest.
The Florida appeals court discussed Florida precedent, but failed to grapple with the implications of Ashcroft v. ACLU (the U.S. Supreme Court decision holding "virtual" child pornography protected by the First Amendment), which to my mind has important parallels with this case.
Unlike the material in COPA, the material at issue here does feature actual minors in sexual poses or situations. On the other hand, like the COPA material it does not arise out of adult-child sexual conduct and most likely does not document an underlying crime. Of course there remains the consideration that the production of such images may indirectly encourage the market for child pornography generally and the abuse of children -- but it was precisely this concern that the Court in COPA found to be an insufficient premise for criminal liability.
The crucial difference between the COPA materials and those under discussion here is, in the words of the Florida court, that
if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.This is, without doubt, a weighty concern. But it is far form clear that criminal liability is well-tailored to this protective interest, given the possible negative implications of a child pornography conviction itself. Sure, some teens will be deterred, and others will be able to keep their convictions under seal when they come of age, but the "damage that may be done to these minor's careers or personal lives" by being prosecuted remains immense. (I of course gloss over here another crucial difference with COPA, i.e. that it was a First Amendment case and not a privacy case. Notwithstanding the doctrinal differences, I think much of the analysis transfers, at least once you accept that there is a constitutional right at issue here.)
I honestly don't know why imagined this issue would never materialize, as teenagers have been taking naughty pictures at least since the advent of the Polaroid camera and probably before. With the increasing ubiquity of camera phones, web cams, and other cheap digital cameras, no doubt teenagers are generating indecent images of themselves and each other, with no adult involvement, as never before.
But let's not leave it to speculation: raise your hand if you, as a teenager, committed the crime of "producing, directing or promoting a photograph or representation that [you] knew to include the sexual conduct of a child," i.e. teenager.
If you haven't raised your hand, ask your friends.
If none of them did, that probably just means you're over 35.
Perhaps I'm engaging in a bit of hyperbole here, but I think I nevertheless have made the point that this is a very widespread phenomenon, and treating it as a crime is potentially a very big deal.
It remains to be seen, of course, whether federal or other state prosecutors will seek to apply similar statutes to minors, or how courts would treat constitutional challenges to those prosecutions outside the somewhat rarified world of Florida's privacy jurisprudence. Nevertheless, I'd say this is an issue to watch.