Oftentimes, when lawmakers don’t know how to make sense of something, or it scares them, they criminalize it.
Exhibit A: sexting.
Sexting is very common among teens, frequently referenced in pop-culture, and perhaps a mystery to people who didn’t grow up with a cellphone. Some may call it “unwise.” Friends may steer friends away from doing it. But one thing is for sure, sexting should not be criminal.
After all, if teenagers decide to engage in some racy sexting, is it really the government’s place to punish them? If a photo or text conversation goes viral, sometimes the young person whose privacy was violated is , which is just plain wrong. And all parties in these situations are young people who may not have the judgment to make the best decisions — so should they have the rest of their life ruined because of a bad decision?
The answer should be no.
Enter Ohio lawmakers, a group of (mostly) angry older white guys who are shaking their fists and bemoaning kids today while doing little, if anything, to understand the millennial generation. On May 22, members of the Ohio House Criminal Justice Committee a “teen sexting ban.” This misguided and over-the-top legislation proposes to “ban sexting” for anyone under the age of 19. The full House is expected to vote on this bill soon.
This legislation results in numerous, negative ramifications for young people. It even goes so far as to create a brand new crime, “possession of sexually explicit material” that any kid caught sexting could be charged with. With the creation of this new crime, judges have the option to send young people to eight hours of “criminal service,” where both the legal and non-legal consequences of “sexting” will be explained to them.
The stigma behind any criminal conviction is severe, but to tar these kids as sex offenders could quite literally ruin their lives. This charge could make it impossible for young people to access opportunities for education, housing, and employment for years to come.
Lawmakers have said they are creating this new crime to give judges and prosecutors an option not to charge young people with more serious crimes, such as a felony offense. But there’s a problem with that: Judges and prosecutors aren’t required to do what these legislators might want. Instead, they can simply continue to charge kids with felonies for sexting and maybe throw in this new charge as well for good measure.
Here’s one idea: If we don’t want kids to be given harsh penalties for sexting, how about we pass legislation that explicitly says that they cannot be given those serious criminal charges?
One other idea — since we’re giving out free advice — don’t you think a young person would better benefit from this information if it were presented to them in just about any other way? Most teenagers are adverse to lectures from authority figures to begin with, especially if it’s about a topic as uncomfortable as their bodies and their sexual expression, which has been criminalized to boot. We absolutely should be talking with young people about sexting and sexual health altogether, but punishing them and lecturing at them is not an effective way to do it.
Teens can get hurt in relationships, and they can end badly. Young people should guard their privacy and be aware of the risks of sexting. If one party violates another person’s trust by spreading pictures or screenshots of text messages, they should utilize the civil courts to stop the person’s misbehavior. But feeding young people into the criminal justice system where they could be branded for life will accomplish nothing but ruining young people’s lives for conduct that should never be criminal to begin with.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.