Youth sexting and the First Amendment: Rhetoric and child pornography doctrine in the age of translation

Abstract

Sexting has become a common mode of communicative sexual expression in the United States. Youths who sext with their peers are sometimes charged for the crime of producing and distributing child pornography. Such charges are inconsistent with the intent of American child pornography law, which is to protect children from abuse and exploitation. Understanding sext messages as a type of media content, this essay offers rhetorical translation as one strategy for identifying resources in Supreme Court doctrine to help distinguish between youth sexts and child pornography. Through rhetorical translation, this manuscript finds resources in four opinions concerning child pornography and the First Amendment for distinguishing sexting from child pornography. These distinctions pertain to how the two types of media are produced and distributed as demonstrated in a three-part interpretive model: motive and consent, privacy and consent, and market.