First Amendment Sexual Privacy: Adult Sexting and Federal Age-Verification Legislation

The modern sexting phenomenon amongst adults raises important questions at the intersection of relational privacy, free expression, and federal criminal law. A little-known but long-standing federal statutory scheme—18 USC 2257, 2257A, and the accompanying Attorney General regulations (“Section 2257”)—threatens to criminalize the private exchange of sexual communication between consenting adults. While there has been relatively frequent litigation involving Section 2257 initiated by the commercial adult entertainment industry, courts and scholars alike have been all but silent as to Section 2257’s impact on private, not-for-profit sexual speech. So too has the literature on the legality of sexting focused almost exclusively on adolescents, whose erotic exchanges raise concerns about child pornography and human trafficking not triggered by adult communication.

Even when the debate has turned to private adult sexual expression, it has typically focused on the dangers related to non- consensual disclosure, commonly known as “revenge porn.” As a result, Section 2257’s application to a broad range of otherwise lawful adult expression remains virtually unchallenged and largely ignored by judges, academics, and the American public.