On the other hand, criminalizing participation in such activity would dramatically raise the stakes involved from mild embarrassment to actual legal penalties.However, as I made clear last Friday, May 4, I have recommended no such thing and do not support legal penalties against teenage participants:
Under what I am suggesting -- which is really, at this point, more a general principle for legislation than a fully worked out proposal (I'm no lawyer) -- women and men under 21 would retain the right to flash anyone they wanted or take photos for personal use, under the theory that the people a law is intended to protect should not be punished under it. All that would be lost is young men and women's ability to participate in commercial enterprises looking to sell their erotic images, and the risk of involuntary distribution of their non-commerical images....The intent would be to expand the zone of privacy for young men and women.Current law does not punish those who are under 18 who participate in porn or streak at their high school football games (except to the extent they get fined for public indecency), and there would be no legal justification for punishing older teens who do so, either, in the unlikely event the age limit for participating in porn were raised.
I'll have more to say on this and some of the other critiques later this week.
UPDATE: Atrios points to a case where two minors were prosecuted for e-mailing and downloading nude pictures of themselves as evidence that current law can be and has been used against minors who participate in pornographic activity. This outcome is legally absurd and contrary to the principle of the anti-child porn laws, as the dissenting judge in the decision noted, and certainly not something any of us should support. But what is the proper solution? I can't imagine that Atrios would argue that we ought to throw out the child porn laws in toto, just because they are on occasion prosecuted overzealously and in a way that is contrary to their intention. In any event, my piece has sparked some very interesting counter-proposals for how to expand the zone of privacy for 18-20 year olds, some of which are likely to be half as effective but 100 times less controversial than my original proposal, and therefore much more likely to be accepted by legislators and civil libertarians alike. And that, my dears, is what pieces like mine are supposed to do -- flush out ideas and, through public debate and study, lead to adoptable ones. As I said, I'll be addressing this all in more detail shortly.
--Garance Franke-Ruta
