Sexting, a protected medium of speech

Sexuality is innately human—an inherent a carnal desire played out by even the most conservative. The way in which we express our innermost sexual desires varies from person to person. With the advent of new technology it has become increasingly easier to transmit sexual messages with the intent to arouse. At its foundation sexual interaction is something very personal. The way in which human beings interact with each other depends largely on cultural and familial upbringing. Alternatively, the way in which society handles sexual interaction has become less personal and more controlled. Controlling of sexuality is not something new. For centuries women have been controlled in order to suppress sexual desire, arousal and pleasure. The culture in which we live is so negatively driven when it comes to sex. It has been engrained as something shameful, hurtful and embarrassing. The only reaction to this public shame is to move to a medium with a veil of secrecy.

Because of so many new outlets in which we can express ourselves, the negative sexual atmosphere has been alleviated. People are now able to interact behind a veil of secrecy while still expressing their sexual desires. Whether this comes in the form of a webcam, texting or online photos there is an outlet not once offered to millions of people. It is with this understanding that I argue these sexual mediums are at its foundation personal. There is no room for the suppression of freedom of expression within the home. What is deeply personal should be protected. Sexuality is not dictated by the state. Stanley v Georgia states that in the privacy of ones own home, the government has no right to infringe on what he/she decides to do when it comes to sexual material. Privacy plays an important factor in the freedom of speech in this case. For erotica material, privacy translates to freedom. In the opinion of the Supreme Court Justice Marshall states that “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitution heritable rebels at the thought of giving government the power to control men’s minds” (Stanley v. Georgia). This is to say that the government should operate under the notion that individual choice of consumption is inherently tied to the first amendment. Just as church and state have traditionally been separated, the government implies that the state should have little involvement with ones personal life inside the home—a place with no captive audience or direct harm to others.

Material is not indecent or obscene if it is communicated between two consenting individuals. Self-gratification theorists like Haiman would suggest that individuals will be in the best judgment of their interests. This is to say people will seek out that in which they wish to entertain themselves. The internet is a location in which people have ample opportunity to steer away from content. Same with cell phones and other technological devices. It takes a user to search and interact with content.

According to the FCC v. Pacifica Foundation in 1978, indecent speech was defined as “language that describes, in terms patently offensive as measured by community standards for the broadcast medium.” There are a couple key things to point out from this landmark decision. First and foremost, when it comes to personal sexual arousal with the use of technology—pornographic material, “sexting,” webcamming, etc—there is little to no community standard which can be applied. A community standard implies that this is a communal decision or something, rather, that affects the community at large. When we discuss personal technological sexual arousal, we refer primarily to interactions between two consenting individuals. It is an action they have taken, thus exposing only themselves to any and all sexual material.

Again, Stanley v. Georgia states that “A state has no business telling a man, sitting alone in his own house, what books he may read or films he may watch.” The same applies to all technological sources. Like the book, the internet, webcam and cellphone all have a personal responsibility attached with them. This is to say that unlike the television there is the immense opportunity for consumers to decide the information in which they want to consume. We do not have to be forced to view pornographic material on the internet nor do we not have a choice in webcamming in a sexual manner.

It is important to cite the landmark case of Reno v. ACLU in 1997—the first case concerning cyberspace and free speech. In the decision the court clearly ruled that the internet deserved the utmost amount of protection. The court stated that “governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.” Like Milton, the theory of the marketplace of ideas –even though sexually based—is encouraged and deserves to be honored precisely because it is individualistic in nature. Sexual imagery is an important addition to the marketplace of ideas as it is a topic that relates directly to the most human aspect of who we are—our sexuality. As stated, we live in a sex-negative culture. We all need a greater understanding that technology allows us to create an atmosphere of decreased stigmatization. With this said, I would propose increasing Stanley v Georgia to include the protection of sending and receiving obscene live webcams. The fact of the matter is, these videos being sent are often between two consenting individuals. They are rarely ever forced and even if they were, individuals have the option of blocking such material. We have choices as to what we consume. Furthermore, the definition of what is considered obscene is completely subjective. Community standards don’t even apply, as sexuality is inherently something very personal and individualistic.

There is no incitement of danger in sexting or webcamming nor does it prove any indecency or obscenity if it is between two consenting parties who are of-age. It may in the sense that ethically people may not agree with it, but what it comes down to is an individual right—expressed in both Stanley v. Georgia and Reno v. ACLU. I would advocating expanding the former in hopes that the government take even less of a position in regulating what individuals do inside their homes. The promotion of sexual identity and freedom will only serve to strengthen the first amendment and the freedoms it guarantees people. The first amendment does not stop at safe, consensual and important sexual expression.