Sexting and Free Speech: States like Wisconsin Face Tough Legal Questions

In January, a Wisconsin teen was sentenced to a year in detention following charges of child pornography in a sexting case that made headlines across the state. In late 2009, the 14-year-old high school freshman was charged with multiple felony counts after police officers discovered many nude photos of underage classmates on his cell phone and iPod.

As part of its ruling in the sexting case, the court retained the option to extend the teen's sentence until his 18th birthday.

This case, like many others, raises the question of what authorities should do with kids sending nude photos to each other. On its face, Wisconsin law regarding child pornography is clear.

Child pornography is defined as material involving underage children engaged in real or simulated sexual activity, including "lewd exhibition of intimate parts." Whoever possesses any photographic or video depictions of this lewd exhibition (nudity) and knows those involved to be under 18 is guilty of possessing child pornography.

Regardless of age, in Wisconsin, possession of child pornography is a felony offense.

The problem with sexting is that it is so easy to send these photos. For example, a 14-year-old girl sending a topless photo to her 14-year-old boyfriend could make him a sex offender without even thinking about it.

This is happening, more and more often.

In February, another Wisconsin 14-year-old was busted by her father when he discovered nude pictures of her 15-year-old boyfriend on a phone. The girl later admitted that she had also sent compromising images of herself to the boy. Police are currently investigating the situation and both teens could soon face child-pornography charges.

The increasing number of sexting scandals in Wisconsin and across the country has uncovered a need for redefining the laws applied to such cases. Indeed, a Pennsylvania sexting case before the 3rd U.S. Circuit Court of Appeals could be the first to set such a precedent for change.

The case involves several teenage girls who became caught up in a sexting scandal after photos of them in bras and, one, in a towel, made the rounds at school. A county prosecutor is threatening felony charges if the girls do not agree to attend a "re-education" course discussing topics such as the danger of sexual predators.

However, the accused teens first argue that the photos aren't so racy at all and second, that they did not distribute them. Groups such as the American Civil Liberties Union (ACLU) have come forward to voice their support for the teens on the basis of freedom of speech.

They argue that should the teens be forced to take part in such a re-education course, it would be compelled speech, which is barred by the U.S. Constitution.

Free speech issue or not, the questions about how to punish teens accused of sexting remain. On the one hand, the laws governing child pornography seem unambiguous. However, on the other hand, the circumstances around sexting seem much less clear.

Especially in situations that involve voluntary picture sharing between minors — who is the victim? Does putting a teenager in the sex-offender database solve potential problems or does it apply a vicious stigma to a child too young to understand the implications of his or her decision?