Not, say, by having the police destroy the photos and telling them to go home and be smarter next time.
How much of a deterrent effect do you think this has? “OK, kids, you’re creating a thing that is a complete abomination to the people of this state, a form of speech so vulgar that even the first amendment won’t touch it, and that mere possession of it carries a prison sentence. And if you do it, you’re going to get the worst talking-to you can imagine! We’ll tell you that what you did was wrong! And that you shouldn’t do it again! And we’ll delete all the digital copies! Well, all the ones we can find, anyhow! That will teach you to manufacture child pornography! And you can bet we’ll be devoting serious police and prosecutorial resources to ensure that we gently slap you on the wrist!”
It has to be the least intrusive means of furthering the state’s compelling interest. Giving kids a lecture and telling them “don’t do it again” does not effectively further those interests. The legislature has determined it should be criminal, and it’s not in the power of the courts to say, “Well, it’s a second degree felony, but screw the voters, we think it should be a fourth degree felony!” The state has a compelling interest, and any reasonable action short of criminalization will not effectively further that interest. It’s not the place of the courts to be fine-tuning criminal punishments because they think the ones the legislature came up with are too easy (or too harsh).
As far as the summary of her talking to the cops, that’s pure conjecture. We don’t even know if she was interrogated; they certainly didn’t need to talk to her once they had that evidence. For all we know, they found about the pictures because she called them out of fear her boyfriend would distribute them. I also doubt that the police were sophisticated enough to be prying into her grounds for a constitutional defense at the appellate level. And such an interrogation certainly isn’t mentioned in the dissenting opinion (which is right below the majority one). And it’s somewhat irrelevant; if she genuinely believed her boyfriend had a realistic chance of distributing them, she did not have a reasonable expectation of privacy. And if she didn’t think there was any such realistic chance, she shouldn’t have told the cops she was actually worried he’d distribute them.
This is a law governing the existence of a thing so abhorrent, mere possession of it is a felony. The state has a compelling interest, not merely in punishing those who create it, but in ensuring that it is never created in the first place. You may take issue with this, and say, “Well, it ain’t so bad,” but that’s simply not what the law says, and you don’t get to rewrite the law.
Merely to reiterate that the law on child porn doesn’t care what the age of the creator (photographer) or the possessor is. It only cares what the age of the photographed minor is, for the purposes of defining child porn. But the two teenagers were found guilty in part because they were teenagers. If they had been adults, in possession of the same child porn (photos made of themselves years ago at age 16), then privacy protections would have applied. And so this is a small part of the relevance of this whole story to the original discussion on youth rights.
But the two teenagers were found guilty in part because they were teenagers. If they had been adults, in possession of the same child porn (photos made of themselves years ago at age 16), then privacy protections would have applied.
If I went to a bar, met some woman, went home with her, and we consensually took naked pictures with each other, and sent them to each other, privacy would not attach (at least under the reasoning of this ruling). The minors were not denied privacy for the simple fact that they were minors; they were denied privacy because the nature of society and of their relationship did not create a reasonable expectation of privacy. I believe that if a significant expectation of privacy had been demonstrated (they were engaged, they had been in a relationship for an extended period of time, they had drawn up some kind of non-disclosure contract, etc.), the case would have turned out differently.
Edit: I remembered the judge’s opinion incorrectly, so I withdraw my comment here (it was only posted for a few minutes). My apologies.
I can add though that the whole case makes people uneasy because it’s convoluted, as court cases often are. The appeal’s argument is that the state should have respected the teenagers’ privacy. The appeal court denies the argument for privacy because it feels the girl must be protected from her boyfriend, who may use those photos against her. As the court opinion says,
Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives.
So how do they protect her in case her boyfriend hurts her in the future? By making her a felon, putting her on probation, and using up her money on court cases.
Oh, fun! I get to advocate for the Devil.
How much of a deterrent effect do you think this has? “OK, kids, you’re creating a thing that is a complete abomination to the people of this state, a form of speech so vulgar that even the first amendment won’t touch it, and that mere possession of it carries a prison sentence. And if you do it, you’re going to get the worst talking-to you can imagine! We’ll tell you that what you did was wrong! And that you shouldn’t do it again! And we’ll delete all the digital copies! Well, all the ones we can find, anyhow! That will teach you to manufacture child pornography! And you can bet we’ll be devoting serious police and prosecutorial resources to ensure that we gently slap you on the wrist!”
It has to be the least intrusive means of furthering the state’s compelling interest. Giving kids a lecture and telling them “don’t do it again” does not effectively further those interests. The legislature has determined it should be criminal, and it’s not in the power of the courts to say, “Well, it’s a second degree felony, but screw the voters, we think it should be a fourth degree felony!” The state has a compelling interest, and any reasonable action short of criminalization will not effectively further that interest. It’s not the place of the courts to be fine-tuning criminal punishments because they think the ones the legislature came up with are too easy (or too harsh).
As far as the summary of her talking to the cops, that’s pure conjecture. We don’t even know if she was interrogated; they certainly didn’t need to talk to her once they had that evidence. For all we know, they found about the pictures because she called them out of fear her boyfriend would distribute them. I also doubt that the police were sophisticated enough to be prying into her grounds for a constitutional defense at the appellate level. And such an interrogation certainly isn’t mentioned in the dissenting opinion (which is right below the majority one). And it’s somewhat irrelevant; if she genuinely believed her boyfriend had a realistic chance of distributing them, she did not have a reasonable expectation of privacy. And if she didn’t think there was any such realistic chance, she shouldn’t have told the cops she was actually worried he’d distribute them.
This is a law governing the existence of a thing so abhorrent, mere possession of it is a felony. The state has a compelling interest, not merely in punishing those who create it, but in ensuring that it is never created in the first place. You may take issue with this, and say, “Well, it ain’t so bad,” but that’s simply not what the law says, and you don’t get to rewrite the law.
I’m not going to argue with the devil :-)
Merely to reiterate that the law on child porn doesn’t care what the age of the creator (photographer) or the possessor is. It only cares what the age of the photographed minor is, for the purposes of defining child porn. But the two teenagers were found guilty in part because they were teenagers. If they had been adults, in possession of the same child porn (photos made of themselves years ago at age 16), then privacy protections would have applied. And so this is a small part of the relevance of this whole story to the original discussion on youth rights.
If I went to a bar, met some woman, went home with her, and we consensually took naked pictures with each other, and sent them to each other, privacy would not attach (at least under the reasoning of this ruling). The minors were not denied privacy for the simple fact that they were minors; they were denied privacy because the nature of society and of their relationship did not create a reasonable expectation of privacy. I believe that if a significant expectation of privacy had been demonstrated (they were engaged, they had been in a relationship for an extended period of time, they had drawn up some kind of non-disclosure contract, etc.), the case would have turned out differently.
Edit: I remembered the judge’s opinion incorrectly, so I withdraw my comment here (it was only posted for a few minutes). My apologies.
I can add though that the whole case makes people uneasy because it’s convoluted, as court cases often are. The appeal’s argument is that the state should have respected the teenagers’ privacy. The appeal court denies the argument for privacy because it feels the girl must be protected from her boyfriend, who may use those photos against her. As the court opinion says,
So how do they protect her in case her boyfriend hurts her in the future? By making her a felon, putting her on probation, and using up her money on court cases.