The Artful Jurist

Okay, I admit this may be stretching things a bit.  But I’ve been hearing about the case in Pennsylvania, where a woman is suing her former high school for violating her free speech rights when it confiscated her cell phone and allowed school officials and law enforcement people to view the nude photos of the woman that she had stored on the phone, and it raises a question for me.

In a technical sense, the photos of the woman, who was a minor at the time of the incident, fell into the kiddie porn quagmire that makes it illegal to distribute or even to possess material deemed to be child pornography.  The laws don’t distinguish even when the person possessing the material is also the willing subject and creator of it.  That’s how kids are getting into trouble these days over the so-called “sexting,” sharing nude or semi-nude digital photos of themselves through cell phone transmissions, and the Pennsylvania woman (then a high school girl) was facing potential child pornography charges even though there apparently was no evidence she had shared her photos with anyone else.  At the time, she opted for the “re-education” class that was offered in lieu of criminal charges.

So how does this figure into the law as it relates to art?  Well, I remember there was a time when it was a fairly typical thing to photograph a bare baby on a bearskin rug.  There’s a whole industry devoted to child photography, and the bearskin rug pose was (maybe still is) so common as to be a cliché.  But, if you shared that photo with a friend on your cell phone, would that constitute sexting?

Now I know your adorable infant on a rug isn’t pornography.  It’s a tasteful, classic, non-sexual pose.  But would the Pennsylvania high school girl have fared any better had her nude photos been tasteful, classic, and non-sexual?  For that matter, who’s to say they weren’t?  Perhaps her photos were as tasteful as “Venus Rising from the Sea.”  But the kiddie porn laws don’t have absolutes to guide those who must enforce them.  And that’s the problem with all of the laws regulating what’s deemed to be “obscene” material.  Who’s to say what’s obscene?  Even the U.S. Supreme Court couldn’t answer that one with anything more helpful than “I know it when I see it.”  And, as far as cracking down on sexting goes, it seems from what I’ve heard that officials aren’t having artistic debates over the nudity of minors that pops up on kid’s cell phones.