The DTH and ‘sexting’ laws..

It is becoming somewhat of a consensus among moderates that the recent effort to place ‘sexting’ under the purview of child pornography laws is an overzealous criminalization of teenagers. Such legislation passed the North Carolina General Assembly last summer, and the Daily Tar Heel rightly took a stand in favor of the counter-trend around the country to relax punishments and lower the classification of the offense from a felony to a misdemeanor. An action resulting more from basic human immaturity than malice should not land a minor on sex-offenders list.

However, the article ignores the far more persuasive argument against such laws, which asks on what basis the government justifies its involvement in private texting conversations, regardless of content. Though family values groups cry pornography, the logical inclusion of ‘sexting’ within its bounds is not obvious. Child pornography is a criminal act that requires an innocent victim. Voluntarily sent messages ought not to amount to criminal conduct, and criminal conviction based on communication that should never reach the eyes of the government ought to raise 4th Amendment concerns.

That family values groups are the driving force behind the effort is bothersome. As a family values traditionalist myself, I recognize the concern over the problem of ‘sexting’ and its consequences. But I also recognize that a core tenet of the conservative belief in these values is that the family is the basic unit of society. It follows that the government should refrain from interfering with the role of the family in handling its own problems. When a teenager ‘sexts’ her boyfriend, it is no one’s concern but her parents.

Family values conservatives such as Bill Brooks of the N.C. Family Policy Council, referenced in the DTH editorial, stubbornly insist on such a role for government, and they cease to talk merely about family values. They reveal their attempt to assert their moral agenda on society, and they trample on the privacy and the values of the family.

17 thoughts on “The DTH and ‘sexting’ laws..

  1. So you think it should be legal for minors to make the potentially disastrous decision to send pornographic images of themselves to their immature, imprudent, and indiscreet peers? Seriously, call me a fascist, but I have no problem with the government getting involved in this if it means that it will prevent minors from making decisions that they are too immature to make. Maybe they shouldn't be considered felons, and maybe it shouldn't go on their permanent record or anything like that, but they should be punished when they are caught, and they should know that they will be punished if they do get caught.

    "When a teenager ’sexts’ her boyfriend, it is no one’s concern but her parents."

    And her boyfriend's concern, and his parents' concern, and his friends' concern (because you gotta know he's showing all of them) and his friends' parents' concern and society's concern (if it ends up on the Internet, and, considering the level of immaturity that we're dealing with, that isn't very unlikely). What about when she decides to run for political office? Acts like that need to be taken very seriously in this age of the Internet and cell phones. Sorry if that walks all over your notion of liberty, but that's just the way I see it.

    "They reveal their attempt to assert their moral agenda on society, and they trample on the privacy and the values of the family."

    Every law asserts a moral agenda on society, whether it's a seat belt law, a child pornography law, a law on murder, a law on abortion, or copyright laws. There's no such thing as a society that doesn't have one moral code or another. There's no such thing as being neutral on morality.

    "Voluntarily sent messages ought not to amount to criminal conduct, and criminal conviction based on communication that should never reach the eyes of the government ought to raise 4th Amendment concerns."

    But the point is, it WOULD HAVE/DID reach the eyes of the government. Let's pose a hypothetical question. Let's say that my son receives a "sext" from his girlfriend, and I find out about it and show the DA. Was the government prying? Of course not. You make it sound as if these laws necessitate that the government act like Big Brother.

  2. Brian, the logical outcome of your suggestion is the legalization of child pornography.

    You suggest minors taking and sending explicit pictures of themselves should be legal if done voluntarily. Except that children are held to be legally incapable of giving consent in such a case. Yet, you seem to want to change this in "sexting" cases. This would have the effect of making the taking and distribution of sexually explicit images of minors legal if the minor consented…yet the very notions of child pornography and statutory rape hold that children are incapable of giving legal consent in such cases due to the underdeveloped nature of their brains and their susceptibility to pressure and suggestion from an adult.

    By allowing minors to consent to the creation of pornography, you are opening the door to the legalization of child pornography in general.

  3. Riley, arbitrary involvement of government in policing its citizens is a staple of both the liberal and conservative ideological movements. Thankfully, the conservatives are much closer to stamping it out, but it still manifests itself in the traditional conservative views regarding illegal drug use and a few others. Your argument is virtually the same argument made by liberals to justify gun control and intervention into the free market. It may be practical to make sexting is illegal, but that is not a sufficient reason to justify it.

    I disagree that every law asserts a moral agenda on society. Laws that protect negative individual rights and protect innocent victims assert only that basic function of government; laws that go beyond those functions to attempt to guarantee positive rights or protect people from themselves assert a particular moral agenda.

    On your last point I strongly disagree. Essentially you argue that because someone turns me in for doing something illegal, that action therefore is justifiably illegal and the government is merely doing its job. For a private text message to be the business of a government, yes, that government acts like Big Brother.

    Chris, your argument misses the point of mine, which is about teenagers who take these images of themselves and distribute them themselves. A 16 year old may not be able to legally consent to her boyfriend distributing the image to 25 of his guy friends, and thus I am fully supportive of that remaining illegal. However, the law currently makes it a felony to take and distribute these pictures completely of one's own decision; no action of any one else is required. From the libertarian perspective, it does not matter how old a person is, that cannot be illegal, there is no victim.

    1. "I disagree that every law asserts a moral agenda on society."

      I'm sorry but this is just incorrect. All laws are based on moral value judgments.

      "Laws that protect negative individual rights and protect innocent victims assert only that basic function of government"

      For example, you are making a moral judgment by asserting that this is the just and true function of government.

    2. I simply don't have a problem with there being a law against "sexting" for minors. Again, I don't really want to get as close to anarchy as is humanly possible. As far as liberals using the same argument about guns, that's fine. Let them. That's why I don't debate them on gun control. I just say: "I think they should be legal, you don't, so let's take a vote on it. May the most popular side win."

      Believing in the existence of "negative individual rights" and "innocent victims" are themselves moral beliefs. YOU may think murder is immoral, but what if I don't? I mean, the very term "murder" suggests a preconceived notion on morality. That's why soldiers who accidentally kill civilians in a "just" war are not considered "murderers" and why people who are responsible for the deaths of others in a car accident are not considered "murderers." "Murderers" are people who actively kill other people unjustly ("unjustly" being the key word–who defines "injustice?"). And what about child pornography? You may argue that it's damaging to the children involved, but what if a leftist argued that it's only damaging because of our "socially constructed" notion that extramarital sex involving minors is bad or shameful? They could easily argue that, with a different "socially constructed" notion of morality, children would not be damaged at all by sex at virtually any age, because it would be socially acceptable or some sort of "right of passage" (similar to the ancient Greek system). In other words, there would be no shame involved, no self-hatred, no guilt, no bad memories, no feeling of isolation, etc.

      Here's another way to look at it. Let's say that I decide that your "right" to life tramples on my "right" to live in peace. Who's to say who's right? You may say that you obviously have a right to live, but I may then counter by saying that I can't possibly enjoy my life while you are alive, so, since I have a right to pursue happiness, I have a right to kill you. In our society, the law would be on your side, because, in our moral code, it's incumbent upon me to get over my desire to live without you. It is possible, however, to imagine a society in which it's perfectly legal to commit any kind of killing, for any reason at all. (Interestingly enough, even in such a society, though, it's entirely possible to imagine a low rate of murder: You'd realize that if you killed someone, his family would be likely to kill you.) The point is, your perception of natural rights or whatever you want to call them is itself a moral stance.

      On the last point, I was simply trying to point out that making a law against minors "sexting" does not necessarily mean that the government has to pry. What about rape? The government, by your logic, shouldn't make rape illegal because the government should not be in the bedroom. In other words, the government should not know about what happens in the bedroom. If a woman is raped behind closed doors, does she not have a right to tell the authorities and receive justice?

  4. No, rape would not be legal by my logic, because rape, regardless of where or how it happens, involves an attacker violating an innocent victim. As sexter, by contrast, is the only person involved in her "crime", which is the reason for which I claim that it cannot be a crime. Before you change the direction of my argument in order to counter, let me preempt you: yes, it is therefore illegal the moment the recipient of the sext sends it to 20 of his friends.

    The rest of this discussion involves basic libertarian political theory about which we've all heard all the arguments; I suppose we'll just disagree. I forgot, Chris, that you do not believe in natural rights.

    I will comment, though on this subject. Riley briefly touched on, the logical political philosophy that follows from the views both of you are expressing is that majority rules in all cases. This is an idea that I cannot accept, for it denies what I believe to be objective truth about the individual, that a tyrannical majority can certainly deprive him of his rights to life, liberty, and property. On my side is the ideological history of Western Civilization; Greek natural law, British common law, and the American Founding Fathers all agreed that a majority could exercise government power illegitimately according to a higher law. By your argument, if liberals gained a majority to overturn these traditional assumptions (which they practically have), they would be completely legitimate in doing so.

    1. “As (sic) sexter, by contrast, is the only person involved in her “crime”, which is the reason for which I claim that it cannot be a crime.”

      If that’s really how you see it, then how can you possibly believe that a 15-year-old girl commits a crime when she willingly posts a pornographic video of herself on the Internet?

      “The rest of this discussion involves basic libertarian political theory about which we’ve all heard all the arguments; I suppose we’ll just disagree.”

      You’re right. We will disagree. Libertarianism is a silly philosophy that not only can only be defined subjectively (because everyone has a different idea as to what’s freedom and what’s tyranny), but it also contradicts itself constantly.

      As far as my alleged belief that the majority rules in all cases is concerned, to an extent you have correctly identified my beliefs. To an extent. I don’t, however, believe that the majority is always objectively right, but I do believe that every government rules by the consent of the governed, even dictatorial governments. Iraq is a perfect example. Saddam Hussein seems to have been the only guy who was capable of holding that mess of a country together. Why? Because he, for one reason or another, had the consent of the governed. It’s why we can’t control it today. It’s why the British could not hold on to America–they didn’t have the consent of the governed. The majority of Iraqis may have been wrong about Hussein, and the majority of American subjects to the British crown may have been right about fighting for independence, but that’s not the point. The point is, the majority ultimately always rules. (By the way, this view is from the Thomist philosophy, which arose in the 13th Century and which is heavily rooted in Greek philosophy.)

      1. Well you are probably more familiar with Aquinas than I am, I haven't spent much time with him. However, from what I have studied, part his basis in Greek philosophy was his appropriation of natural law. Cicero's account of Greek natural law makes explicit statements that democratic majorities cannot legitimately violate natural law. The concept doesn't seem to allow for the view that they can.

        It is true that Britain lost America for the reason you gave,. However, more important are the decisions that led to America rescinding its consent, which were constitutional in nature and regarded the actions of the majority in the British Parliament as illegitimate and void.

      2. I believe in natural law, and I believe in natural rights. But those are not the issue in this discussion. We need to understand that we live in an imperfect world in which idealists never really get anything done. They are too caught up in their utopias and with perfecting their ideal political philosophies. That's why libertarians, capitalists, socialists, etc., will never rule the world. Their philosophies are far too rigid to work in the real world.

        Trust me, I, of all people, should know that the majority is not always right (Tancredo incident?). I would go so far as to say that the majority is mostly wrong. But that doesn't change the practical reality that the buck stops with the majority (or at least with the most powerful faction–and, in truth, what's more powerful than an angry mob?).

  5. The idea of Public space seems to be ignored here. The concept of a "big brother" is not in the implementation of their presence, but instead the realm they presume jurisdiction over. When the most fundamental and defended spaces of private expression are under the jurisdiction of the Government, they have over stepped their bounds.

    Think of it this way;

    "The government exists in part to create a civil society. Anything that is done by the individual must fit within this civil society. Furthermore, we will use various means, including featuring non-invasive civil-reporting, to ensure compliance. This is all legitimate as a means to further the 'purpose' of the government- to create a civil society."

    If you accept this argument, you have prescribed to, by definition, Totalitarianism. We like to think that this evil is something that only comes out in black leather with genocidal machinations, but in political terms, it is when all space/agency of the individual is under the jurisdiction of the government (in abstraction; all power must be sublimated through interaction with the government). As I have reiterated- it is not implementation, but how we allow intentions of the government to supersede our intentions.

    Antagonists have been portraying this as a choice between banning sexing, or legitimizing child pornography. The same hyperbole would say this is a choice between the loss of human free will, or allowing sexting.

    It is the basic weakness of our relativistic morality based on extenuating circumstances- these have no place in forming the dynamics for government. In the personal individual human context, we can apply relativistic morality based on conditions, and construct our perceptions of justice and 'rightness'. The changes we express will influence how we interact with the world, and will be limited to the power that we can exhibit as individuals…

    But when you apply this same moral authority to the government, be very careful what dynamics you allow. If you give government organs the ability to change their definition of morality, and that civil society, then you need to limit the authority of the government through expressly delineated power dynamics. Otherwise, you have the chance of a mad man who has the granted authority to make every element of your life mad.

    The one solace of Democracy is that the minority maintains their political power despite being the minority, deriving from them having human agency. What value is this agency, if there is no space to express it without needing to meet the standards of the majority?

  6. I believe that my last comments were lost into cyber space, but I wanted to address this last idea about prying. The issue is not with the implementation of government authority, but the scope. If we construct a power dynamic which asserts that there is nothing beyond the jurisdiction of the government, then there is no private space at all, and we definition wise have become Totalitarian.

    The real question is not the implementation, but the authority. When we assert that the government should create a moral society, we authorize them to have jurisdiction in all the areas where we deem there to be a moral judgment. In essence, we empower the government to have the authority to intervene in any human action.

    The limitations on the dynamics of the government are essential, because as an institution, it lacks the very limitations on humans that facilitate our ability to have causality and extraneous circumstances in evaluating justice. Primarily, if we supersede the rights of others, they either can reciprocate or seek reparation/punishment. However, the government lacks a reciprocal body to match its abuses– the only power capable of that is the mass of citizens and constituents.

    We can wait for, injustices, genocides, and other possible abuses of this authority by the government, and then apply a retroactive solution to fix the dynamic. Or we can pro-actively recognize our role within the dynamic of the government's power, and establish the private space that is beyond government sublimation, that the government can not control, and which ultimately forms the last refuge of the individual self.

    1. You’re making this far more complicated than it has to be. My rape example is perfect. I’d imagine that most rapes don’t occur in broad daylight, agreed? Most occur in privacy. So, does a woman who is raped behind closed doors in the privacy of her “lover’s” home not have a right to tell the authorities? After all, by your logic, we could easily argue that the government should not be in the bedroom.

      So you’re against using “various means, including…non-invasive civil-reporting, to ensure compliance”? That’s the most ridiculous thing I’ve ever heard. So, when I see someone break the law, I’m not supposed to report it? That makes sense.

  7. You see, you have constructed an example which is not at all parallel.

    In the case of sexting, the entirety of the action is within private space. It is between two individuals, operating within their freedoms and privacy. In this situation, neither has willingly invited the public sector to establish recourse for this event. However, in the case of rape, there is no question of the desire for recourse, as it was not a consensual private event.

    In this case, if the private action of sexting becomes something non-consensual, then its future occurrence should be under the purview of the law. The past actions, which were done in willful privacy, should not be considered as crimes.

    I recognize that this places a great deal of willful intent on the part of individuals that many flippantly state are not capable of those decisions. However, I challenge that they should then be equally incapable of deciding to turn it over to the government. The long term repercussions of a willful choice, or consent, are much more readily understood and appreciated (even by a youth). However, the results of government action, the possible spill over effects and counter veiling results. I posit that very few people at all have the mental sophistication or capacity for the oversight required to to understand their decision.

    Also, I do not think that you should report the law being broken, unless impacted. In this case, you have the LEAST POSSIBLE understanding of the repercussions of turning over incomplete information to the government, which rarely at all acts with tact or understanding. Our version of "understanding" is making "recourse" for a miss judgment 15 years after it happens.

    We do not have a pro-active system for preventing the negative results of government intervention, so we should not have a pro-active system for initiating the events that can lead to these results.

    1. "In the case of sexting, the entirety of the action is within private space."

      Right. Ever heard the saying "Nothing's illegal unless you get caught"? If the sext remains entirely private, and the government doesn't pry, then the sexter won't get caught and therefore won't be in trouble. Making sexting for minors illegal is more about making a statement to the youth than it is about actually catching them sexting. I'm sorry I actually had to explain that.

      "I recognize that this places a great deal of willful intent on the part of individuals that many flippantly state are not capable of those decisions. However, I challenge that they should then be equally incapable of deciding to turn it over to the government. The long term repercussions of a willful choice, or consent, are much more readily understood and appreciated (even by a youth)."

      First, I actually believe that many teenagers should be perfectly capable of making "those decisions." But our culture is such that younger people tend to mature mentally much later in life than they have in previous generations. As a result, we need to treat them accordingly.

      Second, maturation is an incremental process. One of the first things a young child learns is to "follow the rules." They are taught not to cheat in games, they are taught not to lie, they are told to be honest with their parents, etc. Later, they learn discretion and how to use it while, at the same time, doing what's right and following the rules–that is, following social norms, customs, and laws (which are a result of social norms and customs). It comes much more naturally to young people to run their mouths than it does for them to remain discreet, and this is not all bad because, as a result of their immaturity, it seems wisest for them to trust their elders so that they can learn from them, rather than using their own poor judgment and making a bad, possibly disastrous, decision. The youth need to trust their elders and they need to understand, if nothing else, that their decisions are immature and probably imprudent, relative to adults (whether they're political leaders, executive leaders, judicial leaders, or their parents).

      Now, a teenager who receives a sext should actually turn it over to his/her parents, in my opinion. But should that teenager (or, for that matter, his/her parents) decide to show it to the authorities, woe to the sender. You see, if the receiver decides to show a sext from a minor to someone–anyone–else, then it is no longer a private matter between two people. And if the sender made the incredibly stupid decision to send the sext to someone who would turn him/her in, then, really, whose fault is that? Again, I'm not in favor of the government prying for information. But as soon as it becomes public knowledge (and by "public knowledge," I mean that the knowledge is available to the detached government) that a sext was sent, then the sext is subject to the law. Period.

      Also on this point, you need to understand that government is not inherently evil, bad, inept, or prejudiced. Even a police officer or a DA can use discretion. So when you speak of a person who reports criminal activity to the police as being wrong on the grounds that he/she has the "LEAST POSSIBLE understanding of the repercussions of turning over incomplete information to the government," you are assuming several things. You are, first, assuming that you're actually right about the informant having the "LEAST POSSIBLE understanding." I certainly don't think that this is always or necessarily true. You're also assuming that the knowledge of the informant is incomplete. Finally, you're assuming that the government has some inherent inability to judge a given case reasonably and justly. Nice try, though.

      “Also, I do not think that you should report the law being broken, unless impacted.”

      Everyone is impacted by every action somehow. The question is, to what degree is one impacted? I agree that people should mind their own business as a general rule, but it’s really up to you to decide what you should involve yourself in and what you shouldn’t, and what you should involve the authorities in and what you shouldn’t, and it’s also up to the government to determine what they’re going to prosecute and what they’re not. You should know that many criminals are not prosecuted for their well-known offenses.

  8. You're completely dodging the real issue Riley. The argument is not that illegal activities occurring behind closed doors should not be reported and prosecuted, but that activities occurring behind closed doors and not involving an innocent victim should not be illegal. Your rape example does not address that point.

    1. If anyone is dodging an issue here, it's you. At the heart of it, you want to believe that "every law [does not necessarily assert] a moral agenda on society," while simultaneously believing that you can legally define the term "victim." One man's garbage is another man's treasure. One man's concept of a victim is another man's concept of a beneficiary. What if I consider the receiver of the sext a victim, whether he would consider himself a victim or not? And there's really no such thing as an "innocent victim." Even if we could agree (although, apparently we cannot) on what a victim is, it's clear that almost no one is completely innocent in any given situation.

  9. Riley, either you have a wonderful set of defense mechanisms, or you didn't really read what I wrote. The "least possible understanding" is with regards to onlookers of an event. It is possible, nay common, for people to believe that an illegal event is occurring, when in fact it is not. You are relying on the information from the person who has (to the point of meriting capital letters again) the LEAST POSSIBLE insight into the context of an event.

    Now, skipping over the scary section of your post where you instruct society on how to make generations of non-thinking behaviorist robots who learn nothing from real life experience, and only from their elders, lets just bask in the glory of your next to last sentence;

    "it’s also up to the government to determine what they’re going to prosecute and what they’re not"

    Really? Here I thought Government was created to serve the people, and the interests of the people.

    The basic issue you have forgotten is that a Democracy is fundamentally designed to intervene when the exercise of one individual's rights supersede the rights of another. I'm sorry, but your right to call mommy 'cause you feel uncomfortable when we talk about *gulp* those kinds of things, does not get to supersede my right of privacy.

    Also, to address a fundamental gap in your understanding; if you make sexting illegal, it means that sexting in the PAST is illegal, and could be introduced into a court. That is like allowing a divorced woman to claim all the times she had sex with her husband were rape, because she no longer is please that it occurred. Yes, I know it is absurd… but hey, you are the one arguing it.

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