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Privacy Rights in the Digital Age

Sexting

by Christopher T. Anglim

Any digital transmission of an explicit image created by a sender and sent to a recipient. Sexting involves only two parties, and the images depict either the recipient or the sender.

The most controversial aspects of sexting is when it involves a minor. Most of the discussion in this entry involves sexting as related to teenagers. The “narrow scope of sexting occurs between two teenagers, either as part of courtship or a relationship, and when they act in a flirtatious or romantic manner. The pictures are consensually sent and received within the agreed upon boundaries of the relationship. The “wide scope” of sexting involves those cases when a minor sends an image they made of themselves to multiple recipients or sends an unsolicited sext that is not part of a romantic relationship.

Under current law, sexting poses a difficult legal issue because minors technically violate state and federal law when they sext. Child pornography law prohibits any visual depiction that involves a minor engaging in sexually explicit conduct. No exceptions have been recognized on the context. Child pornography statutes currently prohibit sexting-related images, despite the fact that the statutes are intended to prosecute “sexual exploitation and other abuse of children” by predatory adults. Under current circumstances, prosecutors are punishing minors for intimate sexual decisions, not for conduct that abuses children.

Although sexting is technically a criminal offense, it appears to be common practice among a wide spectrum of individuals, including well-known individuals. Sexting is becoming increasingly common among teenagers. A Pew survey in 2009 found that 15 percent of cell-phone users between the ages of twelve and seventeen have received a sexually explicit image of a person they know. The National Campaign to Prevent Teen and Unplanned Pregnancy reported that 19 percent of survey participants aged thirteen to nineteen had sent a sexually suggestive picture or video of themselves through email, cell phone or other medium and 31 percent had received a nude or semi-nude picture. Sexting becomes a legal issue because approximately 20 percent of all teenagers are involved in conduct that could result in imprisonment and sex offender registration.

Despite the potential of harsh punishment, the National Campaign's 2008 survey appears to indicate that sexting has become a “normal” part of life for many teenagers. Usually, the recipient of sexts is a significant other of the sender. Teens most frequently engage in sexting for fun or to be flirtatious. A majority of teen recipients of sexts reported that they were amused or aroused. Less than 10 percent of the respondents reported they were scared, angry, or disappointed, and only 15 percent said they were disgusted. Sexting appears to have also become part of courtship among contemporary American teenagers. After receiving a sext, 22 percent of recipients said they were more interested in dating compared to 13 percent that were less interested.

Current criminal statutes, however, associate sexted images with child predators. This could result in the prosecution of minors for creating what is technically “child pornography,” when they view sexting as merely expressing their sexuality through a new medium.

Some teenage sexting has led to serious consequences and tragic results. In 2008, Jessica Logan, a high school senior, took some provocative pictures of herself using her cell phone and transmitted the images to her boyfriend. After the relationship had ended, he sent the photographs to Jessica's classmates, who disseminated both the photos, along with vile comments about her. As a result of this torment, Jessica committed suicide shortly after her graduation.

Opponents of sexting argue that because there are negative consequences when minors are forced into child pornography, there are also dangers when the teenagers produce the pornography themselves. In most cases, however, adult exploitation is absent from teen sexting. It may be a difficult argument to make that teenagers are abused when they created sexual images through their own free will.

There are three commonly made arguments stressing that sexting is harmful. First, the government believes that teen sexual activity is always inherently “abusive” because minors are incapable of consent. This argument would assert that individuals under the age of consent do not accurately perceive all the ramifications of engaging in sexual activities. Children who engage in sexual intercourse, therefore, are victimized regardless if they perceive themselves as a victim. Privacy rights advocates have criticized this argument because sexting does not result in issues such as pregnancy or sexually transmitted diseases. These privacy advocates also argue that any harms such as bullying and the harmful dissemination are committed by third parties, not by the creators of the sexts.

Another argument is that there is the possibility that embarrassing images may be widely disseminated, beyond what the sender had intended. While this is a potential danger, privacy advocates argue, criminalizing sexting does not answer the actual risk. Cases of bullying or harassment may be dealt with statutes directed at the wrongdoers. Opponents of sexting also argue that sexting is potentially harmful to minors because other individuals might use these images inappropriately. Opponents of sexting offer a rebuttal that it is more effective and efficient for the government to eliminate sexting entirely rather than seeking to identify and punish difficult to find third party disseminators of the images. When an item appears on the Internet, it is almost impossible to stop its spread.

Last, many sexting opponents argue that any production of child pornography is potentially dangerous because it may later be used to encourage predators or entice children into unwanted sexual activity. Privacy advocates, however, argue that just because an activity may have harmful side effects, that fact does not necessarily justify a blanket prohibition of an activity that involves fundamental rights. Privacy advocates invoke Justice Kennedy, who wrote a majority opinion that invalidated the Child Pornography Prevention Act of 1996. He wrote that “[t]here are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused,” Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Privacy advocates, thus, argue that the sexual abuse of children should be fought by prosecuting predatory adults as opposed to suppressing of teenage sexting.

Although no court has held that sexting is constitutionally protected speech, some privacy rights advocates argue that courts could consider the rights of privacy raised by prosecuting minors who engage in sexting. Privacy advocates argue that courts should balance governmental regulations against sexting against their costs to individual liberty. These advocates offer Lawrence v. Texas, 539 U.S. 558 (2003) as a workable framework to determine whether state interests justify state involvement in the personal decisions involved with teenage sexuality, as exemplified in sexting.

Further Reading

1 

Hiestand, Todd C. and W. Jesse Weins, eds., Sexting and Youth: A Multidisciplinary Examination Kreimer, Seth F. “Sex, Laws, and Videophones: The Problem of Juvenile Sexting Prosecutions,” in Children, Sexuality, and the Law, ed. Sacha M. Coupet and Ellen Marrus, 133–62 (New York: New York University Press, 2015).

2 

Sweeny, Jo Anne,“Sexting and Freedom of Expression: A Comparative Approach,” Kentucky Law Journal 102 (2013–2014): 103–46.

See also: Child Online Privacy Protection Act (COPPA); Children's Right to privacy; Lawrence v. Texas; Obscenity; Pornography

Citation Types

MLA 9th
Anglim, Christopher T. "Sexting." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0189.
APA 7th
Anglim, C. T. (2016). Sexting. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Anglim, Christopher T. "Sexting." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.