Recently many states in America have struggled to cope with sexting (Melby, 2011). Sexting—sending sexually suggestive photos or text messages via the Internet, cell phones, or other electronic devices—is often associated with teenagers. However, it is probably more common among young adults as revealed by a recent report from the PEW Research Center’s Internet and American Life Project that reported sexting to be most common among people ages 18 to 29 (Parker-Pope, 2011). Nevertheless, to date legal scholars have focused primarily on sexting by minors. Some observers of this trend describe the racy photos exchanged during youthful sexting as self-produced child pornography. Other commentators are adamantly opposed to establishing sexting as a crime out of concerns about First Amendment rights and fear that defining sexting as an offense will sweep reckless but not criminal youth into the court system (Hoffman, 2011).
Some states have sought to define sexting as a criminal offense and other states have allowed charging youthful practitioners of sexting with a misdemeanor, which provides the option of diversion programs and subsequent purging of their legal records. For example, New Jersey is debating a legislative bill that would route all first-offense juveniles charged with sexting to an educational diversion program. Other states take different approaches to sexting by juveniles. In Nebraska, youths who forward a risque image may be punished while the creator of the image is not charged. Some states advocate charging minors who produce the image as well as those who forward it. North Dakota supports legal sanctions for anyone shown to have circulated a sexually suggestive photo with the intention of humiliating the teenager depicted in the photo (Hoffman, 2011). Several states (such as Florida, Texas, and New Jersey) have decriminalized sexting, instead opting to levy small fines or require several hours of community service (Melby, 2011).
States disagree not only about who should be prosecuted but also about how to define the images sent via sexting (Duncan, 2011). Some legal scholars argue that prosecution should occur in the case of "lewd and lascivious" images while other legal experts consider any nude images to be a violation. As we shall see in Chapter 18, legal experts have struggled for decades trying to define pornography, which no doubt encompasses "lewd and lascivious" in the minds of some politicians and legal experts. The viewpoint that all nude images are lewd or pornographic is especially susceptible to First Amendment challenges.
Sexting sometimes involves images or messages sent between an adult and a minor. For example, a 32-year-old female high school teacher in Arizona was recently arrested for sending sexual photos of herself to a 16-year-old male student (Younger, 2011).
Officials in many American states continue to discuss and debate the nature of legal transgressions that involve sexting—who should be punished and what factors may influence how criminal charges are levied. We will watch closely as the practice of sexting evolves along with the response of legal scholars and state officials to this aspect of technology.