Judge rules anti-child-porn statute doesn’t infringe on sexting adults

Opponents couldn't prove current enforcement, breadth of legally "explicit" images.

by Asher Hawkins

Today, a Philadelphia-based federal judge issued an order (PDF) rejecting a First Amendment challenge to the constitutionality of a pair of laws that require creators of sexually explicit media to maintain records certifying that those depicted in their works are 18 or older.

These regulations were originally passed by Congress to combat child pornography. Among the arguments raised by the challengers—who included both porn producers and sex educators—was that the plain language of these statutory recordkeeping requirements unfairly exposes ordinary consenting adults to criminal liability if they fail to maintain meticulous records. The challengers alleged that risk occurs every time adults use a cell phone to send a sexually explicit image or share homemade sexual images via a date-facilitating website or social network.

These opponents reasoned that because the recordkeeping statutes could theoretically apply to innocent sexters and hookup-hungry social networkers, the laws were “facially overbroad.” In non-legalese, they viewed these laws (as currently written) to be unconstitutional because they criminalize harmless conduct that the laws were not supposed to target. In support of these arguments, the challengers relied on the expert testimony of two psychology academics who testified during an eight-day bench trial last month about the prevalence of sexting among responsible, mentally stable adults.

But in his decision today, US District Judge Michael Baylson of the Eastern District of Pennsylvania noted that the academics’ research did not give a sense of how raunchy Americans’ sexts tend to be.

That degree of informational nuance is important, Baylson found, because the challenged laws are concerned with “sexually explicit content.” The federal criminal code defines this as actual or simulated depictions of intercourse, masturbation, bestiality, sadistic or masochistic abuse, or “lascivious exhibitions” of the genital area.

“[Neither] expert could determine how many sext messages being exchanged between private persons actually fall within the Statutes’ scope,” Baylson wrote. “The frequency of sext messaging is irrelevant for Plaintiffs’ overbreadth challenge, however, if every sext message were to contain images of breasts, cleavage, and nudity that fell short of ‘lascivious’ exhibitions of genitals. Plaintiffs’ additional evidence about technologies through which adult couples exchange sexually explicit content—e.g., ‘instaporn’ and ‘snapchat’—similarly suffers from this shortcoming.”

Baylson also noted that opponents failed to prove “any realistic probability of enforcement” of the challenged recordkeeping provisions against consenting adults who sext or use sex-minded social networks.

Baylson’s ruling today also rejected the plaintiffs’ claims that forcing them to engage in the recordkeeping at issue violated their First Amendment rights. The case has been kicking around Philadelphia’s federal court system for a few years: in July 2010, Baylson threw out the challengers’ suit without conducting a trial. The challengers appealed, and the US Court of Appeals for the Third Circuit ruled that Baylson should have heard the challengers’ evidence before rejecting the claims. (The straitlaced appellate panel’s decision included no mention of the words “sext” or “instaporn.")