In Washington State, minor who engage in “sexting”—texting sexually explicit images of oneself to another—can be convicted of child-pornography distribution. (Fair warning: this blog post contains sexually explicit language; we don’t hold back.)
Eric Gray, a 17-year-old male, sent an adult woman an unsolicited picture of his erect penis. Accompanying the picture was a message saying, “Do u like it babe? It’s for you. And for Your daughter babe.” He also made several harassing phone calls to the woman over the course of a year. She reported the phone calls and messages to the county sheriff, and Gray was subsequently tried and convicted of second degree dealing in depictions of a minor—a form of child pornography.
The Washington State Supreme Court of affirmed Gray’s conviction over his First Amendment challenge. The statute under which Gray was convicted states, “[a] person commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the second degree when he or she . . . [k]nowingly develops, . . . publishes, . . . [or] disseminate[s] . . . any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct . . . .” As part of his appeal, Gray argued that the statute was unconstitutionally overbroad and vague, chilling protected First Amendment expression.
In its 6-1 decision, the Court found that the statute was neither unconstitutionally overbroad nor vague. Child pornography is not a protected class of expression under the First Amendment, therefore a statute criminalizing it would not be overbroad. The Court rejected Gray’s argument that his case involved a non-exploited minor because the ‘child pornography’ consisted entirely of of images of himself, thereby making the expression protected. Gray additionally argued that the State could pick and choose which minors were punished for sexually explicit conduct thereby inviting discriminatory and arbitrary enforcement, making the statute unconstitutionally vague. But the Court found that the statute makes quite clear the acts which are criminalized and who qualifies as offenders, and Gray had not provided evidence that the state had charged him for a discriminatory or arbitrary reason. The Court thus upheld the statute as constitutional.
No doubt that this case will further complicate the issue of sexting and the First Amendment.
Case: Washington v. Gray, No. 93609-9 (Wash. Sept. 14, 2017) (opinion here)