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Hastings Communications and Entertainment Law Journal

Authors

Terri Day

Abstract

This paper proposes a unique response to the explosive combination of teens, sex and technology. It discusses why most teen sexting does not meet the Ferber definition of child pornography; therefore, a civil remedy for the dignitary and emotional harm caused by the public dissemination of private sexual pictures is far superior to imposing criminal sanctions. The proposed statutory civil cause of action would hold parents vicariously liable for the harms caused by their children's sexting when done with actual malice. Recognizing that common law tort liability is legally unsustainable, this approach strikes a balance between protecting First Amendment rights and providing accountability for sexting done knowingly or with reckless disregard for the harm caused. Since kids are not deterred by the threat of criminal penalties, this proposed statute is a more effective deterrent. Making parents take responsibility for their children's misuse of technology is far superior to government imposed education classes teaching on the morality and propriety of sexting. These values-based lessons are best left to parents, free from government intrusion. The actual malice standard will avoid the feared "floodgate" problems of civil liability and will impose liability for culpable conduct, rather than the content of the message.

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